Exhibit 10.3
FIFTH AMENDMENT TO CREDIT AGREEMENT
This Fifth Amendment to Credit Agreement is made as of the 30th day
of June, 1998 by and among
National Propane, L.P (the "Borrower")., a Delaware limited
partnership, with its principal executive offices at Suite 1700, IES
Tower, 000 0xx Xxxxxx, X.X., X.X. Xxx 0000, Xxxxx Xxxxxx, Xxxx
00000-0000
The lenders and other financial institutions which are now or may
hereafter become a party to the Credit Agreement (the "Lenders"),
BankBoston, N.A. (f/k/a The First National Bank of Boston), as
Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent"), and
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH
WHEREAS, the Borrower, the Lenders, the Administrative Agent and
BancAmerica Xxxxxxxxx Xxxxxxxx, as Syndication Agent have entered into a Credit
Agreement dated as of June 26, 1996 (as amended and in effect, the "Credit
Agreement"); and
WHEREAS, BancAmerica Xxxxxxxxx Xxxxxxxx has resigned as Syndication
Agent; and
WHEREAS, the Borrower has requested that certain provisions of the
Credit Agreement be further amended as provided herein, and the Administrative
Agent and the Lenders are willing to do so.
NOW THEREFORE, it is hereby agreed as follows:
1. Definitions: All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the Credit Agreement.
2. Amendment to Article I. The provisions of Section 1.01 of the Credit
Agreement are hereby amended
a. By amending the definition of "Available Cash" by adding the
words "and, for purposes of Section 6.04 only, except for
Permitted Triarc Prepayments" at the end of the second proviso
thereto on the 24th line of such definition.
b. By amending the definition of "Consolidated Cash Flow" as follows:
(i) by adding the words "other than, for purposes of
Sections 6.04 and 6.31 only, accrued interest
paid in cash as part of any Permitted Triarc
Prepayments" at the end of clause (iii) thereof;
and
(ii) by adding the following immediately after clause
(iv) as follows:
plus (v) for purposes of Sections 6.04 and
6.31 only, all cash proceeds received by the
Borrower on account of Permitted Triarc
Prepayments; plus (vi) for purposes of
Sections 6.04 and 6.31 only, and for
Reference Periods from and after June 30,
1998 only, an amount equal to the lesser of
(A) $1,200,000.00 or (B) the
actual bank, legal, consent and advisory
fees incurred by the Borrower in connection
with the Fifth Amendment to this Credit
Agreement, Amendment No. 1 to the Note
Agreement and Amendment No. 1 to the
Mortgage Notes, in each case which are
deducted in the determination of
Consolidated Net Income, less (vii) the
aggregate Restricted Payments made on the
Borrower's partnership interests or directly
or indirectly (through the Public
Partnership) to the holders of the common
units of the Public Partnership, in either
case from the cash proceeds received on
account of Permitted Triarc Prepayments. For
purposes of this clause (vii), payments made
on account of the Borrower's partnership
interests and to the holders of the common
units of the Public Partnership shall be
deemed made from, and to the extent of, the
cash proceeds received on account of
Permitted Triarc Prepayments.
c. By amending the definition of "Consolidated Interest Expense"
by adding the following after the words "Capital Lease
Obligations" in the fifth line thereof:
, but excluding, for purposes of Section
6.04 hereof, an amount equal to the lesser
of (A) $1,200,000.00 or (B) the actual bank,
legal, consent and advisory fees incurred by
the Borrower in connection with the Fifth
Amendment to this Credit Agreement,
Amendment No. 1 to the Note Agreement and
Amendment No. 1 to the Mortgage Notes, in
each case only to the extent accounted for
as interest expense in accordance with GAAP,
d. By amending the definition of "Net Working Capital" by adding
the following at the end of clause (a) thereof:
plus, for Reference Periods from and after June 30,
1998 only, an amount equal to the lesser of (i)
$1,200,000.00 or (ii) the actual bank, legal, consent
and advisory fees incurred by the Borrower in
connection with the Fifth Amendment to this Credit
Agreement, Amendment No. 1 to the Note Agreement and
Amendment No. 1 to the Mortgage Notes, in each case
which have been paid by the Borrower and only to the
extent deducted in the determination of Net Working
Capital.
e. By adding the following new definitions:
"Increased Market Cost Conditions": shall mean such
time as the average price of propane determined for
any ten (10) consecutive Business Days in the Conway,
Kansas or Mont Belvieu, Texas market, as published by
Oil Price Information Services (or, if such service
discontinues publication of such prices, by such
other service selected by the Borrower and reasonably
acceptable to the Administrative Agent) has increased
from the price so reflected as of the date of the
Fifth Amendment to this Credit Agreement by more than
thirty percent (30%).
"Permitted Triarc Prepayments": shall mean cash
payments received by the Borrower between June 30,
1998 and February 15, 1999 on account of the Triarc
Note consisting of (i) principal in an amount not to
exceed
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$10,000,000.00 in the aggregate, and (ii) accrued
interest on the amount of any such principal
prepayments. For purposes of this Agreement, any
Permitted Triarc Prepayments received by the Borrower
on or before August 14, 1998 shall be deemed to have
been received on June 30, 1998.
"Reinstatement Event": shall mean such time as no
Default or Event of Default exists under the Credit
Agreement and other Loan Documents, provided that, in
making such determination, Consolidated Cash Flow
shall be calculated without regard to the provisions
of clause (v) of the definition thereof (i.e. the
amount of the Permitted Triarc Prepayments shall not
be included in the calculation thereof).
3. Amendments to Article II. The provisions of Article II of the Credit
Agreement are hereby amended as follows:
a. By adding the following subparagraphs to Section 2.09 of the
Credit Agreement:
(e) Effective June 30, 1998, the Tranche A Revolving
Credit Commitments shall be reduced to $10,000,000.00
in the aggregate. The Tranche A Revolving Credit
Commitments may be increased (i) to $15,000,000.00 in
the aggregate upon the occurrence of the
Reinstatement Event, or (ii) to an amount, if any,
determined by the Lenders, in their discretion, not
to exceed $15,000,000.00 in the aggregate upon the
occurrence of the Increased Market Cost Conditions.
The Lenders agree to negotiate in good faith for the
increase in the Tranche A Revolving Credit
Commitments upon the occurrence of the Increased
Market Cost Conditions (nothing contained herein
being deemed, however, the agreement of the
Administrative Agent or the Lenders to increase such
Tranche A Revolving Credit Commitments upon the
occurrence of the Increased Market Cost Conditions).
(f) Effective June 30, 1998, the Tranche B Revolving
Credit Commitments shall be reduced to $12,997,000.00
in the aggregate. The reduction of the Tranche B
Revolving Credit Commitments may not be reinstated.
b. By relettering subparagraph (e) of Section 2.09 as subparagraph (g).
4. Amendments to Article V. The provisions of Section 5.02(c) of the
Credit Agreement are hereby amended by deleting the words "together with the
delivery of financial statements pursuant to paragraphs (a) and (b) of this
Section 5.02" at the beginning thereof and substituting the words "monthly,
within 20 days at the end of each month" in its stead.
5. Amendments to Article VI. The provisions of Article VI of the Credit
Agreement are hereby amended as follows:
a. The provisions of Section 6.04 of the Credit Agreement are
hereby amended by adding the following after clause (d)
thereof:
and (e) no Restricted Payments shall be made on its
partnership interests or directly or indirectly
(through the Public Partnership) to the holders of
the common units of the Public Partnership from the
cash proceeds
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received on account of Permitted Triarc Prepayments
except for Restricted Payments to such common unit
holders publicly announced and payable with respect
to the quarters ending June 30, 1998, September 30,
1998 and December 31, 1998.
b. The provisions of Section 6.31 of the Credit Agreement are
hereby amended by adding the following at the end thereof:
For purposes of calculating Consolidated Cash Flow
pursuant to this Section 6.31, there shall be
included all Permitted Triarc Prepayments (regardless
of whether the calculation is made under clause (i)
or (ii), above); however, each Permitted Triarc
Prepayment shall be included only for the twelve
month period after receipt of such payment by the
Borrower.
6. Consent to Other Amendments. The Lenders hereby consent to Amendment
No. 1 to the Note Agreement and Amendment No. 1 to the Mortgage Notes in the
form annexed hereto as Exhibit "A" and to the amendment of the Triarc Note in
the form annexed hereto as Exhibit "B" and waive any Defaults or Events of
Default which otherwise would have arisen from the execution and performance
thereof by the Borrower and Triarc.
7. Conditions to Effectiveness. This Fifth Amendment to Credit
Agreement shall not be effective until each of the following conditions
precedent have been fulfilled to the satisfaction of the Administrative Agent:
a. This Fifth Amendment to Credit Agreement shall have been duly
executed and delivered by the Borrower, the Administrative
Agent, the Syndication Agent and the Lenders, and shall be in
full force and effect. The Administrative Agent shall have
received a fully executed copy hereof and of each other
document required hereunder.
.
b. All action on the part of the Borrower necessary for the valid
execution, delivery and performance by the Borrower of this
Fifth Amendment shall have been duly and effectively taken and
shall be satisfactory in form and substance to the
Administrative Agent and its counsel.
c. The representations and warranties set forth in Sections 8b.
and 8c. hereof shall be true and correct.
d. The Administrative Agent shall have received an opinion of
counsel to the Borrower reasonably satisfactory to the
Administrative Agent and its counsel.
e. The Administrative Agent shall have received, for the account
of the Lenders, an amendment fee in an amount equal to the
greater of (i)$250,000.00 or (ii) (A) the same percentage fee
paid to the Noteholders to obtain their consent hereto and
amendment or waiver of the Note Agreement, multiplied by (B)
the aggregate of the Commitments, as reduced by this Fifth
Amendment.
f. The Borrower shall have paid to the Administrative Agent all
other fees and expenses then due and owing pursuant to the
Credit Agreement, as modified hereby, including, without
limitation, reasonable attorneys' fees incurred by the
Administrative Agent and the Lenders.
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g. The Noteholders shall have consented to this Fifth Amendment
and shall have entered into Amendment No. 1 to the Note
Agreement and Amendment No. 1 to the Mortgage Notes in the
form annexed hereto as Exhibit "A".
h. The Triarc Note shall have been amended in the form annexed
hereto as Exhibit "B" and the Noteholders shall have consented
thereto.
i. Taking into account the amendments contained herein, no
Default or Event of Default shall have occurred and be
continuing.
j. The Borrower shall have provided such additional instruments
and documents to the Administrative Agent as the
Administrative Agent and its counsel may have reasonably
requested.
8. Miscellaneous.
a. Except as provided herein, all terms and conditions of the
Credit Agreement remain in full force and effect.
Except as herein provided, the amendments provided herein
shall not by implication or otherwise limit, constitute a
waiver of, or otherwise affect the rights and remedies of the
Lender, the Administrative 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.
As used in the Credit Agreement, the terms "Agreement",
"herein", "hereinafter", "hereunder", "hereto", and words of
similar import shall mean the Credit Agreement as amended
hereby.
b. The Borrower hereby represents that, taking into account the
amendments contained herein, all of the representations,
warranties and covenants contained in the Credit Agreement and
other Loan Documents are true and correct in all material
respects (except to the extent that 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 such earlier date).
c. The Borrower further represents that
(i) The execution, delivery and performance by the
Borrower of this Fifth Amendment will not (A)
violate (1) any provision of law, statute, rule
or regulation, (2) any provision of the agreement
of limited partnership of the Borrower, (3) any
order of any Governmental Authority, or (4)
subject to the approval of this Fifth Amendment
by the Required Holders under the Note Agreement,
the provision of any indenture, agreement or
other instrument to which the Borrower or any of
the Loan Parties is a party or which any of them
or their property may be bound, (B) subject to
the approval of this Fifth Amendment by the
Required Holders under the Note Agreement, be in
conflict with, result
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in a breach of or constitute (alone or with
notice 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 (C)
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.
(ii) The execution delivery and performance of this
Fifth Amendment have been duly authorized by the
Borrower.
(iii) On the date hereof and after giving effect
hereto, no Default or Event of Default has
occurred and is continuing.
(iv) This Fifth Amendment constitutes the legal, valid
and binding obligation of the Borrower,
enforceable against it in accordance with its
terms.
d. The Borrower further acknowledges and agrees that it does not
currently have any offsets, defenses, or counterclaims against
the Administrative Agent, the Syndication Agent or the Lenders
under the Credit Agreement or the other Loan Documents.
e. This Fifth Amendment may be executed in several counterparts
and by each party on a separate counterpart, each of which
when so executed and delivered, each shall be an original, and
all of which together shall constitute one instrument.
f. This Fifth Amendment expresses the entire understanding of the
parties with respect to the matters set forth herein and
supersedes all prior discussions or negotiations hereon or any
writings with respect to the subject matter hereof.
g. THIS FIFTH 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.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to be executed and their seals to be hereto affixed as the date first above
written.
"Borrower"
NATIONAL PROPANE, L.P.
By: NATIONAL PROPANE
CORPORATION
its managing general partner
By: /s/ R. Xxxxxx Xxxxxxx, Xx.
___________________________
Name: R. Xxxxxx Xxxxxxx, Xx.
Title: Vice President and CFO
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By: NATIONAL PROPANE SGP, INC.
its general partner
By: /s/ R. Xxxxxx Xxxxxxx, Xx.
___________________________
Name: R. Xxxxxx Xxxxxxx, Xx.
Title: Vice President and CFO
"Lenders"
BANKBOSTON, N.A.
By: /s/ Xxxxxxxxxxx Xxxxxxxx
___________________________
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
BANK OF AMERICA NT & SA
By: /s/ Xxxxx X. Xxxxxxxxx
___________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA
By: /s/ Xxxxxx X. Xxxx
___________________________
Name: Xxxxxx X. Xxxx
Title: Vice President
"Administrative Agent"
BANKBOSTON, N.A.
By: /s/ Xxxxxxxxxxx Xxxxxxxx
___________________________
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
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