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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
Securities Exchange Act of 1934
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Date of the Earliest Event Reported: March 25, 1998
National Propane Partners, L.P.
(Exact name of Registrant as specified in its charter)
Delaware 1-11867 42-1453040
(State or other jurisdiction of (Commission File No.) (I.R.S. Employer
incorporation or organization) Identification No.)
Suite 1700, IES Tower, 200 1st Street, S.E.
Cedar Rapids, IA 52401-1409
(Address of principal executive offices) (Zip Code)
(319) 365-1550
(Registrant's telephone number, including area code)
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Item 7. Financial Statements and Exhibits
Filed herewith are certain agreements and documents entered into by or
otherwise relating to the Registrant and its subsidiaries.
(c) Exhibits.
10.1 Third Amendment dated as of March 23, 1998 to the National
Propane Credit Agreement among National Propane, L.P., the
Lenders (as defined therein), BankBoston, N.A., as
Administrative Agent and a Lender, and BancAmerica Robertson
Stephens, as Syndication Agent.
10.2 Agreement dated as of March 23, 1998 among National Propane
Partners, L.P., National Propane Corporation, Triarc Companies,
Inc., the Lenders (as defined therein), BankBoston, N.A., as
Administrative Agent and a Lender, and BancAmerica Robertson
Stephens, as Syndication Agent.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NATIONAL PROPANE PARTNERS, L.P.
By: NATIONAL PROPANE CORPORATION,
AS MANAGING GENERAL PARTNER
By: /s/ R. Brooks Sherman
--------------------------------
Name: R. Brooks Sherman
Title: Vice President and
Chief Financial Officer
Date: March 25, 1998
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EXHIBIT INDEX
Exhibit No. Description Page No.
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10.1 Third Amendment dated as of March 23, 1998 to the
National Propane Credit Agreement among National
Propane, L.P., the Lenders (as defined therein),
BankBoston, N.A., as Administrative Agent and a
Lender, and BancAmerica Robertson Stephens, as
Syndication Agent.
10.2 Agreement dated as of March 23, 1998 among National
Propane Partners, L.P., National Propane Corporation,
Triarc Companies, Inc., the Lenders (as defined therein),
BankBoston, N.A., as Administrative Agent and a Lender,
and BancAmerica Robertson Stephens, as Syndication Agent.
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THIRD AMENDMENT dated as of March 23,
1998 (this "Third 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 Robertson Stephens, 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 Third 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 Preamble. Effective as of the date hereof:
(a) the Preamble to the Credit Agreement is hereby amended by deleting the first
paragraph thereof in its entirety and substituting in lieu thereof the
following:
"CREDIT AGREEMENT dated as of June 26, 1996, among NATIONAL
PROPANE, L.P., a Delaware limited partnership, BANKBOSTON, N.A., as
Administrative Agent and a Lender, BANK OF AMERICA NT & SA, as a Lender, UNION
BANK OF CALIFORNIA, N.A., as a Lender, and BANCAMERICA ROBERTSON STEPHENS, a
Syndication Agent."
(b) The Preamble to the Credit Agreement is hereby amended by deleting
the amounts "$55,000,000" and "$40,000,000" from the second paragraph thereof
and substituting in lieu thereof the amounts "$35,000,000" and "$20,000,000",
respectively."
SECTION 1.02. Amendments to Article I. Effective as of December 31, 1997
(the "Third Amendment Effective Date"): (a) The definition of "Consolidated Cash
Flow" in Section 1.01 of the Credit Agreement is hereby amended by (i) deleting
part (I) of subparagraph (b) of such definition in its entirety and substituting
in lieu thereof the following: "(I) interest and other financing charges
(including amortization of debt discount and expense and imputed interest on
Capital Lease Obligations),", (ii) deleting part (III) of subparagraph (b) of
such definition in its entirety and substituting in lieu thereof the following:
"(III) non-cash items, including depreciation, amortization and severance
expense in such definition, and" and (iii) adding the following immediately
after the word "Lenders" in the third sentence ", in the case of any asset
sales, and the Lenders, in the case of any asset acquisitions."
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(b) Section 1.01 of the Credit Agreement is hereby amended by deleting
the definition of "Syndication Agent" therefrom in its entirety and substituting
in lieu thereof the following:
""Syndication Agent" shall mean BancAmerica Robertson Stephens,
in its capacity as syndication agent hereunder, and its successors in
such capacity."
(c) Section 1.01 of the Credit Agreement is hereby amended by deleting
the definition of "Tranche B Conversion Date" therefrom in its entirety and
substituting in lieu thereof the following:
""Tranche B Conversion Date" shall mean June 30, 1999."
(d) Section 1.01 of the Credit Agreement is hereby amended by deleting
the definition of "Tranche B Maturity Date" therefrom in its entirety and
substituting in lieu thereof the following:
""Tranche B Maturity Date" shall mean June 30, 2002."
(e) Section 1.01 of the Credit Agreement is hereby amended by deleting
the definition of "Tranche B Revolving Credit Commitment" therefrom in its
entirety and substituting in lieu thereof the following:
""Tranche B Revolving Credit Commitment" shall mean, with
respect to each Lender, the commitment of such Lender to make Tranche B
Revolving Loans hereunder as set forth in Section 2.01(b), in the amount
set forth in Exhibit A or in an assignment in accordance with Section
9.04, as t same may be reduced from time to time pursuant to Section
2.09 or changed from time to time pursuant to an assignment in
accordance with Section 9.04. The aggregate amount of the Lenders'
collective Tranche B Revolving Credit Commitment as of the Closing Date
shall equal $20,000,000."
SECTION 1.03. Amendment to Section 3.13. Effective as of the Third
Amendment Effective Date, Section 3.13 of the Credit Agreement is hereby amended
by deleting paragraph (b) thereto in its entirety and substituting in lieu
thereof the following:
"(b) The proceeds of all Tranche B Revolving Loans will be used
solely (i) to fund the purchase price of any Eligible Propane
Acquisitions by the Borrower or any Restricted Subsidiary (provided, in
the case of an acquisition of Capital Stock, that the Person so acquired
becomes a Restricted Subsidiary) and (ii) to fund Growth-Related Capital
Expenditures of up to $5,000,000 per fiscal year; provided, that, during
any period in which the ratio of Total Funded Debt to Consolidated Cash
Flow is greater than or equal to 4.50:1.00, (A) Borrowings for
Growth-Related Capital Expenditures shall be limited to $500,000 per
fiscal quarter and (B) Borrowings for Growth-Related Capital
Expenditures for new Partnership plants and facilities shall require the
consent of the Lenders. The
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Tranche B Letters of Credit will be issued solely to support
obligations of the Borrower incurred in connection with such
acquisitions and Growth-Related Capital Expenditures."
SECTION 1.04. Amendment to Section 4.03. Effective as of the Third
Amendment Effective Date: (a) Section 4.03 of the Credit Agreement is hereby
amended by deleting the phrase "be no greater than the Permitted Maximum Ratio"
from paragraph (g) of such Section and substituting in lieu thereof the phrase
"not be equal to or greater than 5.00:1.00".
(b) Section 4.03 of the Credit Agreement is hereby amended by adding the
following new paragraph (i):
"(i) In the event that the proceeds of any Tranche B Revolving Credit
Borrowing are used to fund the purchase price of any Eligible Propane
Acquisition, the Borrower shall deliver to the Administrative Agent,
together with the notice of such Borrowing, evidence satisfactory to the
Administrative Agent that each Lender has consented in writing to such
Eligible Propane Acquisition."
SECTION 1.05. Amendments to Article VI. Effective as of the Third
Amendment Effective Date: (a) Section 6.31 of the Credit Agreement is hereby
amended by deleting the chart from paragraph (a) of such Section and
substituting in lieu thereof the following:
"Calendar Period Maximum Permitted Ratio
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Third Amendment Effective Date
Through December 30, 1998 5.25:1.00
December 31, 1998 through
March 30, 1999 5.00:1.00
March 31, 1999 through
December 30, 1999 4.75:1.00
December 31, 1999 through
March 30, 2000 4.50:1.00
March 31, 2000 and thereafter 4.25:1.00"
(b) Section 6.31 of the Credit Agreement is hereby amended by deleting
the phrase "prior to March 31, 1998" from the last sentence of paragraph (a) of
such Section.
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SECTION 1.06. 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 her and on and as of the Third Amendment Effective Date with the
same effect as though made on and as of the date hereof or the Third
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 Third Amendment have been duly authorized by the Borrower.
(d) This Third 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 Third 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 1.07. Conditions. The effectiveness of this Third Amendment
shall be subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received duly executed
counterparts of this Third Amendment which, when taken together, bear
the authorized signatures of the Borrower and the Lenders.
(b) The representations and warranties set forth in Section 1.06
shall be true and correct.
(c) The Lenders shall have received an opinion of outside
counsel to the Borrower, satisfactory in form and substance to the
Lenders and their counsel.
(d) The Administrative Agent shall have received duly executed
counterparts
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of the Restricted Payment Agreement dated as of March 23,
1998 by and among the Public Partnership, National Propane Corp.,
Triarc, the Lenders and the Agents which, when taken together, bear the
authori signatures of all of the parties thereto.
(e) The Administrative Agent shall have received an amendment
fee in the amount of $200,000 to be distributed pro rata among the
Lenders.
(f) 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 cou
All corporate and other proceedings taken or to be taken in connection
with this Third 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 1.08. APPLICABLE LAW. THIS THIRD 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 1.09. 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 Third
Amendment, including, but not limited to, the reasonable fees and disbursements
of counsel, including internal bank counsel. The agreement set forth in this
Section 1.09 shall survive the termination of this Third Amendment and the
Amended Agreement.
SECTION 1.10. Counterparts. This Third 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 1.11. 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, nor 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 Third Amendment Effective Date,
the Amended Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Third 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/ Ronald R. Rominiecki by /s/ R. Brooks Sherman
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Name: Ronald R. Rominiecki Name: R. Brooks Sherman
Title: President Title: Vice-President, Chief Financial Officer
Attest: By: NATIONAL PROPANE
SGP, INC.,
its general partner
by /s/ Ronald R. Rominiecki by /s/ R. Brooks Sherman
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Name: Ronald R. Rominiecki Name: R. Brooks Sherman
Title: President Title: Vice-President, Chief Financial Officer
and BANKBOSTON, N.A., as Administrative Agent
as a Lender
by /s/ Christopher Holmgren
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Name: Christopher Holmgren
Title: Director
BANK OF AMERICA NT & SA,
as a Lender
by /s/ Daryl G. Patterson
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Name: Daryl G. Patterson
Title: Vice President
BANCAMERICA ROBERTSON STEPHENS,
BANCAMERICA ROBERTSON STEPHENS,
as Syndication Agent
by /s/ Jane E. Rawles
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Name: Jane E. Rawles
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
by /s/ Dustin Gaspari
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Name: Dustin Gaspari
Title: Assistant Vice President
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EXECUTION COPY
THIS AGREEMENT (this "Agreement") is entered into as of March 23, 1998 by
and among NATIONAL PROPANE PARTNERS, L.P., a Delaware limited partnership
("NPP"), NATIONAL PROPANE CORPORATION, a Delaware corporation ("NPC"), TRIARC
COMPANIES, INC., a Delaware corporation ("Triarc"), the LENDERS (as hereinafter
defined), BANKBOSTON, N.A. (f/k/a The First National Bank of Boston) in its
capacity as Administrative Agent (the "Administrative Agent"), and BANCAMERICA
ROBERTSON STEPHENS, as Syndication Agent (the "Syndication Agent"; together with
the Administrative Agent, the "Agents") under that certain Credit Agreement
dated as of June 26, 1996 (as amended, modified, extended or restated from time
to time, the "Credit Agreement") among National Propane, L.P. (the "Borrower"),
the lenders named therein (the "Lenders"), the Administrative Agent and the
Syndication Agent (all capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Credit Agreement).
RECITALS
A. Of even date herewith and at the request of the Borrower, the Borrower
and the Lenders entered into a Third Amendment to the Credit Agreement (the
"Third Amendment") pursuant to which the Lenders have agreed to modify certain
provisions of the Credit Agreement.
B. NPC is the Managing General Partner of the Borrower and a guarantor of
the Borrower's Facilities Obligations. NPC is a wholly-owned subsidiary,
directly or indirectly, of Triarc.
C. NPP is the limited partner of the Borrower.
D. As one of the conditions precedent to the Lenders' agreement to enter
into the Third Amendment, the Agents and the Lenders have required the execution
and delivery of this Agreement by NPC and Triarc. The Lenders are relying on
Triarc's and NPC's covenants and agreements made hereunder in entering into the
Third Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Definitions. The following terms shall have the following
meanings in this Agreement:
"Subordinated Units" shall mean the subordinated units representing
subordinated general partner interests in NPP.
SECTION 2. Restricted Payments. (a) As of the date hereof, NPC hereby
agrees that it will not, directly or indirectly, receive or accept any
Restricted Payment from the Borrower or NPP on account of the Subordinated
Units, if, after giving pro forma effect thereto, the ratio of the Borrower's
Total Funded Debt to Consolidated Cash Flow is greater than or equal to
4.50:1.00.
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(b) As of the date hereof, NPP hereby agrees that it will not, directly or
indirectly, receive or accept any Restricted Payment from the Borrower on
account of the Subordinated Units, if, after giving pro forma effect thereto,
the ratio of the Borrower's Total Funded Debt to Consolidated Cash Flow is
greater than 4.50:1.00.
(c) Until termination of this Agreement pursuant to Section 20 below, if
any Restricted Payment not permitted to be received or accepted by either NPC or
NPP under this Agreement is in fact received or accepted by either NPC or NPP,
such Restricted Payment shall be held in trust by NPC or NPP, as the case may
be, for the benefit of the Lenders and shall be promptly (and in any event
within one Business Day) transferred by NPC or NPP, as the case may be, to the
Administrative Agent for the benefit of the Lenders. Until such Restricted
Payment is transferred to the Administrative Agent, NPC or NPP, as the case may
be, shall separate such Restricted Payment and not commingle such Restricted
Payment with any asset of either NPC or NPP.
(d) Any monies received by the Administrative Agent with respect to any
Restricted Payment pursuant to clause (c) of this Section 2 may be applied to
prepay the Facilities Obligations and reduce the Revolving Credit Commitment in
accordance with Section 2.09 of the Credit Agreement (or, if required by the
terms of the Trust Agreement, paid over to the Trustee for disposition pursuant
to the terms thereof).
SECTION 3. Sale, Transfer, etc. Neither NPC nor NPP shall sell, assign,
pledge, mortgage, hypothecate, dispose of or otherwise transfer all or any
portion of the Subordinated Units or NPP's limited partnership interests in the
Borrower, respectively, that are owned, directly or indirectly, by NPC and NPP,
as the case may be, (collectively, the "Equity Interests"), or any right to
receive payments, dividends, or distributions on account thereof, (a) without
giving prior written notice of such action to the Administrative Agent, (b)
unless at or prior to the consummation of any such action, the transferee
thereof shall execute and deliver to the Administrative Agent an agreement
substantially similar to this Agreement, providing for the continued restriction
on the receipt or acceptance of Restricted Payments as provided herein and for
the continued effectiveness of all of the rights of the Lenders arising under
this Agreement and (c) unless all Subordinated Units contain a legend as set
forth in Section 4 below. Notwithstanding the failure of any purchaser of any
Equity Interests to execute or deliver any agreement as required in clause (b)
above, the restrictions effected hereby shall survive any sale, assignment,
pledge, disposition or other transfer of all or any portion of such Equity
Interests, and the terms of this Agreement shall be binding upon the successors
and assigns of each of NPC and NPP, as provided in Section 16 below.
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SECTION 4. Legend. (a) Until termination of this Agreement pursuant to
Section 20 below, all Subordinated Units shall be certificated and all such
certificates or documents representing any Subordinated Units at all times shall
contain in a conspicuous manner the following legend:
THE SUBORDINATED UNITS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON THE RECEIPT BY ITS HOLDER OF ANY RESTRICTED
PAYMENTS FROM NATIONAL PROPANE, L.P. (THE "BORROWER"), IN THE MANNER AND TO
THE EXTENT SET FORTH IN THAT CERTAIN AGREEMENT (THE "AGREEMENT") DATED AS
OF MARCH 23, 1998 AMONG NATIONAL PROPANE PARTNERS, L.P., NATIONAL PROPANE
CORPORATION, TRIARC COMPANIES, INC., THE LENDERS (AS HEREINAFTER DEFINED),
BANKBOSTON, N.A. IN ITS CAPACITY AS ADMINISTRATIVE AGENT (THE
"ADMINISTRATIVE AGENT") AND BANCAMERICA ROBERTSON STEPHENS IN ITS CAPACITY
AS SYNDICATION AGENT (THE "SYNDICATION AGENT") UNDER THAT CERTAIN CREDIT
AGREEMENT DATED AS OF JUNE 26, 1996 (AS AMENDED, MODIFIED, EXTENDED OR
RESTATED FROM TIME TO TIME, THE "CREDIT AGREEMENT") AMONG THE BORROWER, THE
LENDERS NAMED THEREIN (THE "LENDERS"), THE ADMINISTRATIVE AGENT AND THE
SYNDICATION AGENT; AND EACH HOLDER OF THESE SUBORDINATED UNITS, BY ITS
ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE AGREEMENT.
(b) Contemporaneously with the execution and delivery of this Agreement,
NPC will deliver, or cause to be delivered, to the Administrative Agent copies
of certificates representing all Subordinated Units containing the legend
referenced in clause (a) of this Section 4.
SECTION 5. Guarantee, Indemnification and Covenant. (a) Triarc
unconditionally guarantees, as a primary obligor and not merely as a surety, the
obligations, monetary or otherwise, of each of NPC and NPP under this Agreement,
whether now owing or hereafter existing (collectively, the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including reasonably
counsel fees and expenses) incurred in enforcing any rights under this
Agreement.
(b) This guaranty is a guaranty of performance and compliance and not of
collectibility and is in no way conditioned or contingent upon any attempt to
enforce performance or compliance by each of NPC and NPP or upon any other event
or condition whatsoever. If for any reason whatsoever either NPC or NPP shall
fail or be unable duly, punctually and fully to comply with any Guaranteed
Obligation, whether or not such failure or inability shall constitute an Event
of Default under any Operative Agreement, Triarc will forthwith perform or
comply with such Guaranteed Obligations or cause such Guaranteed Obligations to
be performed or complied with.
(c) Triarc hereby agrees to indemnify and hold harmless each of the Agents
and the Lenders, and any of their respective directors, officers, employees or
agents from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs,
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expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against any of them in any way relating to or
arising out of this Agreement or any action taken or omitted by any of them
under this Agreement.
(d) Triarc hereby covenants that in the event either NPC or NPP receives
any Restricted Payment in contravention of the terms and conditions of Section
2(a) or 2(b) or either NPC or NPP sells, assigns, pledges, disposes, mortgages,
hypothecates or transfers, by operation of law or otherwise, any Equity
Interests which results in any third party receiving any Restricted Payment in
violation of any term of this Agreement, Triarc shall pay, or cause to be paid,
upon demand, to the Administrative Agent, an amount equal to any such Restricted
Payment.
SECTION 6. Guarantee Absolute. Triarc guarantees that the Guaranteed
Obligations will be performed strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the Agents and
the Lenders with respect thereto. The obligations of Triarc under this Agreement
are independent of the Guaranteed Obligations, and a separate action or actions
may be brought and prosecuted against Triarc to enforce this Agreement,
irrespective of whether any action is brought against either NPC or NPP or
whether either NPC or NPP is joined in any such action or actions. This
Agreement is an absolute and unconditional guaranty of performance and
compliance. The obligations of Triarc hereunder are several from those of each
of NPC and NPP and are primary obligations concerning which Triarc is the
principal obligor. Neither the Agents nor the Lenders shall be required to
mitigate damages or take any action to enforce the Guaranteed Obligations.
SECTION 7. Continued Effectiveness of this Agreement. Except as otherwise
provided herein, the terms of this Agreement, the guaranty hereunder, the
restrictions effected hereby, and the rights and the obligations of NPP, NPC,
Triarc, the Agents and the Lenders arising hereunder, shall not be affected,
modified or impaired in any manner or to any extent by: (a) any amendment or
modification of or supplement to the Credit Agreement or any other Operative
Agreement; (b) the validity or enforceability of any of such document; or (c )
any exercise or nonexercise of any right, power or remedy under or in respect of
the Facilities or any of the instruments or documents referred to in clause (a)
above.
SECTION 8. Representations and Warranties of NPC. NPC hereby represents and
warrants to the Agents and Lenders as follows:
8.1 Corporate Existence and Power. NPC is a corporation duly incorporated
and validly existing under the laws of the State of Delaware.
8.2 Corporate Authority. NPC has full power and authority to enter into,
execute, deliver and carry out the terms of this Agreement, all of which have
been duly authorized by all proper and necessary action and are not prohibited
by its articles of incorporation or by-laws.
8.3 Binding Agreement. This Agreement, when executed and delivered, will
constitute the valid and legally binding obligation of NPC, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency,
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reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by equitable principles.
8.4 Conflicting Agreements; Litigation. The execution, delivery and
performance by NPC of this Agreement will not (a) violate (i) any provision of
law, statute, rule or regulation, (ii) any provision of the certificate of
incorporation or by-laws or other constitutive documents of NPC, (iii) any order
of any Governmental Authority or (iv) any provision of any indenture, agreement
or other instrument to which NPC is a party or by which NPC or its property is
or may be bound or (b) 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. No pending, or, to the best of
NPC's knowledge, threatened, litigation, arbitration or other proceedings are
reasonably likely to in any way prevent the performance of the terms of this
Agreement by NPC.
8.5 Consents. No consent or approval of, registration or filing with or any
other action by (a) any Governmental Authority, (b) any creditor or holder of
any Capital Stock of the Borrower, any of the other Loan Parties or any
affiliate thereof or (c) any other Person, including, without limitation, the
Trustee and the Noteholders, is or will be required in connection with this
Agreement, except such as have been made or obtained and are in full force and
effect.
8.6 Ownership. NPC is the current owner and holder of (i) a 1.0101%
unsubordinated general partner interest in the Borrower, (ii) all of
the capital stock of National Propane SGP, Inc., which owns (A) a 1.0%
unsubordinated general partnership interest in NPP and (B) a 1.0101%
unsubordinated general partnership interest in the Borrower, (iii) a 1%
unsubordinated general partnership interest in NPP and (iv) 4,533,638
Subordinated Units. The interests set forth in clauses (i), (ii), (iii) and
(iv) above, collectively, constitute all of the equity or partnership
interests of the Borrower and NPP owned directly or indirectly by NPC.
SECTION 9. Representations and Warranties of NPP. NPP hereby represents and
warrants to the Agents and Lenders as follows:
9.1 Corporate Existence and Power. NPP is a limited partnership duly formed
and validly existing under the laws of the State of Delaware.
9.2 Corporate Authority. NPP has full power and authority to enter into,
execute, deliver and carry out the terms of this Agreement, all of which have
been duly authorized by all proper and necessary action and are not prohibited
by its constitutive documents.
9.3 Binding Agreement. This Agreement, when executed and delivered, will
constitute the valid and legally binding obligation of NPP enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by equitable
principles.
9.4 Conflicting Agreements; Litigation. The execution, delivery and
performance by
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NPP of this Agreement will not (a) violate (i) any provision of law, statute,
rule or regulation, (ii) any provision of the constitutive documents of NPP,
(iii) any order of any Governmental Authority or (iv) any provision of any
indenture, agreement or other instrument to which NPP is a party or by which NPP
or its property is or may be bound or (b) 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. No
pending, or, to the best of NPP's knowledge, threatened, litigation, arbitration
or other proceedings are reasonably likely to in any way prevent the performance
of the terms of this Agreement by NPP.
9.5 Consents. No consent or approval of, registration or filing with or any
other action by (a) any Governmental Authority, (b) any creditor or holder of
any Capital Stock of the Borrower, any of the other Loan Parties or any
Affiliate thereof or (c) any other Person, including, without limitation, the
Trustee and the Noteholders, is or will be required in connection with this
Agreement, except such as have been made or obtained and are in full force and
effect.
9.6 Ownership. NPP is the current owner and holder of a 97.9798% limited
partnership interest in the Borrower.
SECTION 10. Representations and Warranties of Triarc. Triarc hereby
represents and warrants to the Agents and Lenders as follows:
10.1 Corporate Existence and Power. Triarc is a corporation duly
incorporated and validly existing under the laws of the State of Delaware.
10.2 Corporate Authority. Triarc has full power and authority to enter
into, execute, deliver and carry out the terms of this Agreement, all of which
have been duly authorized by all proper and necessary action and are not
prohibited by its articles of incorporation or by-laws.
10.3 Binding Agreement. This Agreement, when executed and delivered, will
constitute the valid and legally binding obligation of Triarc enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by equitable
principles.
10.4 Conflicting Agreements; Litigation. The execution, delivery and
performance by Triarc of this Agreement will not (a) violate (i) any provision
of law, statute, rule or regulation, (ii) any provision of the certificate of
incorporation or by-laws or other constitutive documents of Triarc, (iii) any
order of any Governmental Authority or (iv) any provision of any indenture,
agreement or other instrument to which Triarc is a party or by which Triarc or
its property is or may be bound or (b) 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. No pending, or,
to the best of Triarc's knowledge, threatened, litigation, arbitration or other
proceedings are reasonably likely to in any way prevent the performance of the
terms of this Agreement by
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Triarc.
10.5 Consents. No consent or approval of, registration or filing with or
any other action by (a) any Governmental Authority, (b) any creditor or holder
of any Capital Stock of the Borrower, any of the other Loan Parties or any
Affiliate thereof or (c) any other Person, including, without limitation, the
Trustee and the Noteholders, is or will be required in connection with this
Agreement, except such as have been made or obtained and are in full force and
effect.
SECTION 11. Cumulative Rights; No Waivers. Each and every right, remedy and
power granted to the Lenders hereunder shall be cumulative and in addition to
any other right, remedy or power specifically granted herein, in the Credit
Agreement or the other Operative Agreement or now or hereafter existing in
equity, at law, by virtue of statute or otherwise, and may be exercised by the
Agents and the Lenders, or any of them, from time to time, concurrently or
independently and as often and in such order as such Agent or such Lender may
deem expedient. Any failure or delay on the part of any Lender in exercising any
such right, remedy or power, or abandonment or discontinuance of steps to
enforce the same, shall not operate as a waiver thereof or affect the rights of
such Lender thereafter to exercise the same, and any single or partial exercise
of any such tight, remedy or power shall not preclude any other or further
exercise thereof or the exercise of any other right, remedy or power, and no
such failure, delay, abandonment or single or partial exercise of the rights of
such Lender hereunder shall be deemed to establish a custom or course of dealing
or performance among the parties hereto.
SECTION 12. Modification. Any modification or waiver of any provision of
this Agreement, or any consent to any departure by NPC or Triarc therefrom,
shall not be effective in any event unless the same is in writing and signed by
each party hereto, and then such modification, waiver or consent shall be
effective only in the specific instance and for the specific purpose given. Any
notice to or demand on NPC or Triarc in any event not specifically required of
the Lenders or the Agents hereunder shall not entitle NPC or Triarc to any other
or further notice or demand in the same, similar or other circumstances unless
specifically required hereunder.
SECTION 13. Additional Documents and Actions. NPC and Triarc shall, at any
time, and from time to time, after the execution and delivery of this Agreement,
promptly execute and deliver such further documents and do such further acts and
things as the Administrative Agent may reasonably request in order to effect
fully the purposes of this Agreement.
SECTION 14. Notices. All notices under the terms and provisions hereof
shall be in writing, and shall be delivered or sent by hand, by express courier
service or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
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(a) If to NPC:
National Propane Corporation
200 First Street, S.E.
Suite 1700
Cedar Rapids, Iowa 52401
Attn: General Counsel
Telecopy: (319) 298-5639
(b) If to the Triarc:
Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
Attn: General Counsel
Telecopy: (212) 451-3216
(c) If to the Administrative Agent:
BankBoston, N.A.
100 Federal Street
Mail Stop 01-08-02
Boston, MA 02110
Attn: Christopher Holmgren
Telecopy: (617) 434-3652
(d) If to the Syndication Agent:
BancAmerica Robertson Stephens
Three Allen Center
333 Clay Street, Suite 4550
Houston, TX 77002-4103
Attn: Daryl G. Patterson
Telecopy: (713) 651-4808
(e) if to a Lender, to it at the address set forth in Section 9.01 of the
Credit Agreement, or at such other address as such Lender shall from time to
time designate to the Administrative Agent.
A notice not given as provided above shall, if it is in writing, be deemed
given if and when actually received by the party to whom given.
SECTION 15. Severability. In the event that any, provision of this
Agreement is deemed to be invalid, illegal or unenforceable by reason of the
operation of any law or by reason of the interpretation placed thereon by any
court or governmental authority, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
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impaired thereby, and the affected provision shall be modified to the minimum
extent permitted by law so as most fully to achieve the intention of this
Agreement.
SECTION 16. Successors and Assigns. This Agreement shall inure to the
benefit of the successors and assigns of the Agents and the Lenders and shall be
binding upon the successors and assigns of NPC, NPP and Triarc.
SECTION 17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall be one and the same instrument.
SECTION 18. Conflict. In the event of any conflict between any term,
covenant or condition of this Agreement and any term, covenant or condition of
any of the Operative Agreements, the provisions of this Agreement shall control
and govern. For purposes of this Section 18, to the extent that any provisions
of any of the Operative Agreements provide rights, remedies and benefits to the
Agents or the Lenders that exceed the rights, remedies and benefits provided to
them under this Agreement, such provisions of the applicable Operative
Agreements shall be deemed to supplement (and not to conflict with) the
provisions hereof.
SECTION 19. Headings. The paragraph headings used in this Agreement are for
convenience only and shall not affect the interpretation of any of the
provisions hereof.
SECTION 20. Termination. This Agreement will terminate on the date on which
the maximum ratio of Funded Debt to Cash Flow pursuant to Section 6.31 of the
Credit Agreement is required to be maintained by the Borrower at 4.50:1.00 or
less, which date is December 31, 1999.
SECTION 21. Effect on Credit Agreement. Nothing in this Agreement is
intended to modify, amend or otherwise supplement any provision of the Credit
Agreement.
SECTION 22. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO ANY CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
SECTION 23. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH PARTY
HERETO HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
WITHIN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK AND IRREVOCABLY AGREE THAT,
SUBJECT TO ADMINISTRATIVE AGENT'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AGREEMENT FILED BY ADMINISTRATIVE AGENT ON ITS OWN
BEHALF OR ON BEHALF OF THE LENDERS OR ANY OF THEM, SHALL BE LITIGATED IN SUCH
COURTS. EACH PARTY HERETO FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENCE, AND IRREVOCABLY AGREES
TO BE
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BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
NOTHING HEREIN SHALL PRECLUDE THE ADMINISTRATIVE AGENT FROM FILING ANY ACTION OR
PROCEEDING PERMITTED UNDER THIS AGREEMENT IN A JURISDICTION OTHER THAN A STATE
OR FEDERAL COURT LOCATED WITHIN THE BOROUGH OF MANHATTAN, STATE OF NEW YORK.
EACH PARTY HERETO IRREVOCABLY AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDINGS MAY BE MAILED BY REGISTERED MAIL TO SUCH PARTY AT THEIR RESPECTIVE
ADDRESSES PROVIDED IN SECTION 14, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY SUCH
PARTY TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF THE AGENTS OR ANY LENDER TO BRING PROCEEDINGS AGAINST NPC OR
TRIARC IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 24. WAIVER OF JURY TRIAL. EACH OF NPC AND TRIARC IRREVOCABLY AND
UNCONDITIONALLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE
ACTION, SUIT OR PROCEEDING ARISING OUT OR RELATING TO THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY OR THE SUBJECT MATTER OF ANY OF THE FOREGOING.
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IN WITNESS WHEREOF, NPC, Triarc, the Agents and the Lenders have caused
this Agreement to be executed as of the date first above written.
NPP:
NATIONAL PROPANE PARTNERS, L.P.,
a Delaware limited partnership
By: NATIONAL PROPANE CORPORATION,
its general partner
By: /s/ R. Brooks Sherman
______________________________
Name: R. Brooks Sherman
Title: Vice President, Chief Financial Officer
NPC:
NATIONAL PROPANE CORPORATION,
a Delaware corporation
By: /s/ R. Brooks Sherman
____________________________________
Name: R. Brooks Sherman
Title: Vice President, Chief Financial Officer
TRIARC:
TRIARC COMPANIES, INC.,
a Delaware corporation
By: /s/ John L. Barnes, Jr.
____________________________________
Name: John L. Barnes, Jr.
Title: Senior Vice President, Chief Financial Officer
ADMINISTRATIVE AGENT:
BANKBOSTON, N.A.
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By: /s/ Christopher Holmgren
____________________________________
Name: Christopher Holmgren
Title: Director
SYNDICATION AGENT:
BANCAMERICA ROBERTSON STEPHENS
By: /s/ Jane E. Rawles
____________________________________
Name: Jane E. Rawles
Title: Vice President
LENDERS:
BANKBOSTON, N.A.
By: /s/ Christopher Holmgren
__________________________________
Name: Christopher Holmgren
Title: Director
BANK OF AMERICA NT & SA
By: /s/ Daryl G. Patterson
__________________________________
Name: Daryl G. Patterson
Title: Assistant Vice-President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Dustin Gaspari
____________________________________
Name: Dustin Gaspari
Title: Assistant Vice-President
