EXHIBIT 10.1
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this "AMENDMENT") dated as of October 23, 2003, but effective as of
the 30th day of June, 2003 (the "FOURTH AMENDMENT EFFECTIVE DATE"), is among
VALLEY NATIONAL GASES, INC., a West Virginia corporation (the "COMPANY"), VALLEY
NATIONAL GASES INCORPORATED, a Pennsylvania corporation ("VNGI"), VALLEY
NATIONAL GASES DELAWARE, INC., a Delaware corporation ("VNGDI"), BANK ONE, NA, a
national banking association having its main office in Chicago, Illinois
(successor by merger with Bank One, Indiana, National Association) ("BANK ONE"),
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, NATIONAL CITY
BANK, a national banking association, THE HUNTINGTON NATIONAL BANK, a national
banking association, WESBANCO BANK, INC., SKY BANK, and FIFTH THIRD BANK
(collectively, the "LENDERS"), and Bank One, as administrative and collateral
agent (the "AGENT") for the Lenders from time to time parties to that certain
Second Amended and Restated Credit Agreement, dated as of May 1, 2000, as
amended by the Amendment to Second Amended and Restated Credit Agreement dated
June 28, 2002, by the Second Amendment to Second Amended and Restated Credit
Agreement dated October 28, 2002, and by the Third Amendment to Second Amended
and Restated Credit Agreement dated as of June 30, 2003 (the "CREDIT
AGREEMENT").
Recital
The Company has requested the Lenders to amend the Credit
Agreement as provided in this Amendment. Subject to the terms and conditions
stated in this Amendment, the Lenders are willing to amend the Credit Agreement
as provided in this Amendment.
Amendment
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein, and each act performed and to be performed hereunder, the
parties hereto agree as follows:
1. Definitions. All terms used in this Amendment that are
defined in the Credit Agreement and that are not otherwise defined in this
Amendment shall have the same meanings in this Amendment as are ascribed to such
terms in the Credit Agreement, as amended by this Amendment.
2. Amendments to Credit Agreement. Effective as of the Fourth
Amendment Effective Date, the Credit Agreement is amended as follows:
(a) New Definitions. Section 1.01 of the Credit Agreement is amended by
the addition of the following new definitions:
"Fourth Amendment" means the Fourth Amendment to Second
Amended and Restated Credit Agreement dated as of October 23,
2003, among the Credit Parties, the Lenders, and the Agents.
"Fourth Amendment Effective Date" means June 30, 2003.
(b) Amended Definitions. The following definitions set forth in Section
1.01 of the Credit Agreement are amended and restated in their
respective entireties to read as follows:
"EBITDA" means, with respect to the Credit Parties and their
respective Subsidiaries for any period, the amount of
Consolidated Net Income, plus, without duplication and to the
extent deducted in determining the amount of Consolidated Net
Income, the sum of (i) interest expense, (ii) income tax
expense, (iii) depreciation, (iv) amortization expense (all
determined in accordance with GAAP), (v) for the calendar
quarter ending March 31, 2003, and any period which includes
such calendar quarter, extraordinary charges not in excess of
$577,000.00 identified on Exhibit A to the Fourth Amendment as
taken during the calendar quarter ending March 31, 2003, and
(vi) for the calendar quarter ending June 30, 2003, and any
period which includes such calendar quarter, extraordinary
charges not in excess of $3,417,000.00 identified on Exhibit A
to the Fourth Amendment as taken during the calendar quarter
ending June, 2003.
For purposes of determining EBITDA for the Credit Parties and
their respective Subsidiaries on a pro forma basis to
determine the effect of a New Acquisition on compliance with
the covenants in subsections 5.01(g) of this Agreement
(excluding the covenant in subsection 5.01(g)(2) of this
Agreement), to determine whether the Qualification Conditions
to any New Acquisition have been satisfied, and to determine
the Applicable Spread, the Applicable LOC Fee Percentage and
the Applicable Unused Commitment Fee Percentage for any period
of twelve (12) months or four fiscal quarters of the Company
that ends ("PERIOD ENDING DATE"): (i) on any New Acquisition
Closing Date, EBITDA for such period will be deemed to include
the Additional EBITDA Amount calculated with respect to the
Related Business Entity acquired (or assumed to be acquired)
on such New Acquisition Closing Date; and (ii) within one year
after any New Acquisition Closing Date, EBITDA for such period
will be deemed to include an amount equal to (A) the
Additional EBITDA Amount calculated with
respect to the Related Business Entity acquired on such New
Acquisition Closing Date, minus (B) 1/12 of such Additional
EBITDA Amount for each full calendar month that has elapsed
between such New Acquisition Closing Date and the Period
Ending Date, minus (c) 1/30 of such Additional EBITDA Amount
for each day of any partial calendar month that has elapsed
between such New Acquisition Closing Date and the Period
Ending Date.
"Fixed Charge Coverage Ratio" means, with respect to the
Credit Parties and their respective Subsidiaries for any
period, a ratio of EBITDAR to the sum of the following for the
Credit Parties and their respective Subsidiaries, computed on
a consolidated basis and determined in accordance with GAAP:
(i) the amount of interest which was due and payable in cash
or was paid in cash during such period, plus (ii) the amount
of depreciation expense deducted in determining the amount of
Consolidated Net Income for such period, provided that, for
the calendar quarter ending June 30, 2003, and any period
which includes such calendar quarter, depreciation expense of
$383,000.00 shall be excluded from the calculation, plus (iii)
the amount of scheduled principal payments of Debt which were
due and payable in cash or were paid during such period, plus
(iv) the amount of income taxes which were due or paid during
such period, plus (v) the amount of dividends that were paid
by VNGI in cash during such period; plus (vi) Rent Expense
deducted in determining the amount of Consolidated Net Income
for such period; plus (vii) Stock Redemption Expense paid or
payable during such period.
3. Representations and Warranties. The Credit Parties jointly
and severally represent and warrant to the Lenders that:
(a) (i) The execution, delivery and performance of this Amendment by
the Credit Parties have been duly authorized by all necessary corporate
action, and do not and will not violate any provision of any law, rule,
regulation, order, judgment, injunction, or writ presently in effect
applying to the Credit Parties, the articles of incorporation or
by-laws of any of the Credit Parties, or result in a breach of or
constitute a default under any material agreement, lease or instrument
to which any of the Credit Parties is a party or by which any of the
Credit Parties or any of the properties of any of the Credit Parties
may be bound or affected; (ii) no authorization, consent, approval,
license, exemption or filing of a registration with any court or
governmental department, agency or instrumentality or any other Person
is or will be necessary for the valid execution, delivery or
performance by any of the Credit Parties of this Amendment; and (iii)
this Amendment is the legal, valid and binding obligation of each of
the Credit Parties, as a signatory thereto, and is enforceable against
each of the Credit Parties in accordance with its terms.
(b) After giving effect to the amendments contained in this Amendment,
the representations and warranties contained in Section 3 of the Credit
Agreement are true and correct with the same force and effect as if
made on and as of the date of execution of this Amendment, except that
the reference to the Financial Statements in Section 3.01(d) of the
Credit Agreement shall be to the most recent financial statements of
the Company and its Subsidiaries provided to the Bank prior to the date
hereof.
(c) After giving effect to the amendments contained in this Amendment,
no Default or Unmatured Default has occurred and is continuing or will
exist under the Credit Agreement.
4. Conditions. The obligation of the Lenders and the Agent to
perform this Amendment shall be subject to full satisfaction of the following
conditions precedent:
(a) The Credit Parties shall have delivered to the Agent copies of such
corporate documents and resolutions of the Credit Parties as the Agent
may request evidencing necessary action by the Credit Parties to obtain
necessary authorization for the execution and performance of this
Amendment and all other agreements or documents delivered pursuant
hereto as the Agent may request, each certified as of the date of
execution of this Amendment.
(b) This Amendment shall have been duly executed by each of the Credit
Parties and the Required Lenders and delivered to the Agent.
(c) The Company shall have paid all costs and expenses incurred by the
Agent in connection with the negotiation, preparation and closing of
this Amendment and the other documents and agreements delivered
pursuant hereto, including the reasonable fees and out-of-pocket
expenses of Xxxxx & Xxxxxxx, special counsel to the Agent.
(d) The Agent shall have received such additional agreements, documents
and certifications, as may be reasonably requested by the Required
Lenders.
5. Guarantor Consent/Affirmation. VNGI and VNDGI, in their
respective capacities as a Guarantor under the Guaranties, by their execution of
this Amendment, expressly consent to the execution, delivery and performance by
the Company and the Agent of this Amendment, and agree that neither the
provisions of this Amendment nor any action taken or not taken in accordance
with the terms of this Amendment shall constitute a termination, extinguishment,
release or discharge of any of their respective guaranty obligations or provide
a defense, set off, or counter claim to any of them with respect to any of their
respective guaranty obligations under any of the Guaranties or other Loan
Documents. VNGI and VNDGI each affirms to the Lenders and the Agent that its
Guaranty remains in full force and effect and is its valid and binding
obligation.
6. Binding on Successors and Assigns. All of the terms and
provisions of this Amendment shall be binding upon and inure to the benefit of
the Credit Parties, the Lenders, the Agent, and their respective successors and
assigns and legal representatives.
7. Governing Law/Entire Agreement/Survival. This Amendment is
a contract made under, and shall be governed by and construed in accordance
with, the laws of the State of Indiana applicable to contracts made and to be
performed entirely within such state and without giving effect to the choice or
conflicts of laws principles of any jurisdiction. This Amendment constitutes and
expresses the entire understanding between the parties with respect to the
subject matter hereof, and supersedes all prior agreements and understandings,
commitments, inducements or conditions, whether expressed or implied, oral or
written. All covenants, agreements, undertakings, representations and warranties
made in this Amendment shall survive the execution and delivery of this
Amendment, and shall not be affected by any investigation made by any person.
The Credit Agreement, as amended hereby, remains in full force and effect in
accordance with its terms and provisions.
8. Further Agreements and Acknowledgments. The Credit Parties
hereby further acknowledge and agree that:
(a) Neither the provisions of this Amendment nor any actions taken or
not taken pursuant to or in reliance upon the terms of this Amendment
shall constitute a novation of any of the Loan Documents, all of which
remain in full force and effect in accordance with their respective
terms, as amended to date; and
(b) Neither this Amendment, nor any action taken by the Lenders or the
Agent pursuant to this Amendment, shall impair, prejudice, or in any
other manner affect the rights of the Lenders with respect to any
Collateral or other security which now or hereafter secures payment or
performance of the Obligations or any part thereof, or establish or be
deemed to establish any precedent or course of dealing with respect to
any matter.
9. Counterparts. This Amendment may be executed, by original
or facsimile signatures, in two or more counterparts, each of which shall
constitute an original, but all of which shall constitute one agreement.
IN WITNESS WHEREOF, the Credit Parties, the Required Lenders
and the Agent have caused this Amendment to be duly executed and delivered by
their respective authorized signatories as of the 23rd day of October, 2003.
VALLEY NATIONAL GASES, INC.,
a West Virginia corporation
By: : /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, CFO
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VALLEY NATIONAL GASES INCORPORATED
a Pennsylvania corporation
By: : /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, CFO
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VALLEY NATIONAL GASES DELAWARE, INC.,
a Delaware corporation
By: : /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, CFO
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BANK ONE, NA, as Lender and as Agent
By: /s/ Xxxxxx X. XxXxxxxx
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Printed: Xxxxxx X. XxXxxxxx
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Title: First Vice President
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LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxxxx
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Printed: Xxxxxxxx X. Xxxxxxx
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Title: Assistant Vice President
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NATIONAL CITY BANK, as Lender and as
Syndication Agent
By: /s/ R E Xxxxxx
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Printed: Xxxxx Xxxxxx
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Title: Vice President
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THE HUNTINGTON NATIONAL BANK, as Lender
and as Documentation Agent
By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxx X. Xxxxxx
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Title: Vice President
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WESBANCO BANK, INC.
By: /s/ Xxxxx X. Xxxx
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Printed: Xxxxx X. Xxxx
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Title: Senior Vice President
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SKY BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Printed: Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President
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FIFTH THIRD BANK
By: /s/ X. X. Xxxxxxx
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Printed: Xxxxxxxxxxx X. Xxxxxxx
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Title: Vice President
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