Exhibit 10.1A
AMENDMENT NO. 1
TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") dated as of May 15, 2002, is by and between INERGY PROPANE,
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LLC, a Delaware limited liability company (the "Borrower"); each of the Lenders
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that is a signatory hereto (each, individually, a "Lender" and, collectively,
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the "Lenders"); and WACHOVIA BANK, NATIONAL ASSOCIATION (f/k/a FIRST UNION
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NATIONAL BANK), as Administrative Agent for the Lenders (in such capacity,
together with its successors and assigns in such capacity, the "Administrative
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Agent").
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WITNESSETH:
WHEREAS, the Borrower, the Administrative Agent and the Lenders are
parties to that certain Fourth Amended and Restated Credit Agreement dated as of
December 20, 2001 (the "Credit Agreement");
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WHEREAS, the Borrower has requested, and the Administrative Agent and
the Required Lenders have agreed, on the terms set forth in this Amendment, that
the IPC Acquisition Facility Termination Date be extended from December 19,
2002, to April 1, 2003;
WHEREAS, as permitted pursuant to Section 5(b) of the Credit
Agreement, the Borrower intends to incur Permitted Private Placement Debt;
WHEREAS, in connection with the incurrence of the Permitted Private
Placement Debt, the Borrower has requested and the Administrative Agent and the
Required Lenders have agreed, on the terms and conditions set forth in this
Amendment, to amend certain provisions of the Credit Agreement (i) to permit the
proceeds of the Permitted Private Placement Debt to prepay the outstanding
principal balance of the Permitted Acquisition Facility prior to the repayment
of a portion of the IPC Acquisition Facility and (ii) to permit the Borrower to
use the Permitted Acquisition Facility to repay the IPC Acquisition Loan in
full; and
WHEREAS, the Borrower, the Administrative Agent and the Required
Lenders have agreed to execute this Amendment in order to document the above-
described modifications to the terms of the Credit Agreement.
NOW THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions; Incorporation of Recitals. Except as
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otherwise defined in this Amendment, capitalized terms used herein and not
otherwise defined herein have the meanings ascribed thereto in the Credit
Agreement. Each of the above recitals is incorporated herein and made a part
hereof.
Section 2. Amendments to Credit Agreement. Subject to the
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satisfaction of the conditions precedent specified in Section 4 below, but
effective as of the date hereof, the Credit Agreement shall be amended as
follows:
Amendment No. 1
2.01. Definitions. Section 1.01 of the Credit Agreement shall be
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amended as follows:
(a) The definition of "IPC Acquisition Facility Termination Date"
is deleted in its entirety and replaced with the following:
"IPC Acquisition Facility Termination Date" means the earlier to occur
of (a) April 1, 2003, and (b) the Termination Date.
2.02. Order of Application of Mandatory Prepayments. Section 4.02(h)
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of the Credit Agreement is deleted in its entirety and replaced with the
following:
(h) Order of Application of Mandatory Prepayments. Any prepayment
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pursuant to Sections 4.02(f) or (g) shall be applied first to permanently
reduce the outstanding principal balance of the IPC Acquisition Loan, and,
upon payment in full thereof, then to the outstanding principal balance of
the Permitted Acquisition Loans, and, upon payment in full thereof, then to
the outstanding principal balance of the Swingline Loans, and, upon payment
in full thereof, then to the outstanding principal balance of the Working
Capital Loans; provided, however, that the Borrower, at its election, may
apply any such prepayment first to the outstanding principal balance of the
Permitted Acquisition Loans, and, upon payment in full thereof, then, the
balance of such prepayment to permanently reduce a portion of the
outstanding principal balance of the IPC Acquisition Loan, so long as
immediately after any such prepayment, the Borrower prepays the outstanding
principal balance of the IPC Acquisition Loan in an amount equal to the
amount of the prepayment of the Permitted Acquisition Loan. Each such
prepayment shall be accompanied by any amount required to be paid pursuant
to Section 4.14.
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2.03. Use of Proceeds. Section 8.08 of the Credit Agreement is
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amended by deleting subsection (ii) thereof in its entirety and replacing
subsection (ii) with the following:
(ii) the Permitted Acquisition Loans for refinancing indebtedness of
the Borrower under the Existing Credit Agreement, for refinancing the IPC
Acquisition Loan, Permitted Acquisitions, Expansion Capital Expenditures
and the payment of fees and expenses incurred in connection with this
Agreement and the other Credit Documents and the transactions contemplated
hereby and thereby;
Section 2.04. General. References (a) in the Credit Agreement
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(including references to the Credit Agreement as amended hereby) to "this
Agreement" (and indirect references such as "hereunder," "hereof" and words of
like import referring to the Credit Agreement), and (b) in the other Credit
Documents to "the Credit Agreement" and "the Agreement" (and indirect references
such as "thereunder," "thereof" and words of like import referring to the Credit
Agreement), shall be deemed to be references to the Credit Agreement as amended
by this Amendment.
Section 3. Representations and Warranties. The Borrower
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represents and warrants to the Lenders and the Administrative Agent that: (a)
the representations and warranties set forth in Article VI of the Credit
Agreement are true and complete on the date hereof as if made on and as
Amendment No. 1
of the date hereof and as if each reference in said Article VI to "this
Agreement" includes reference to this Amendment; and (b) no Default or Event of
Default has occurred and is continuing on the date hereof.
Section 4. Conditions Precedent. As provided in Section 2 above,
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the amendments to the Credit Agreement set forth in Section 2 shall become
effective as of the date hereof, upon the satisfaction of the following
conditions precedent:
4.01. Execution. This Amendment shall have been executed and
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delivered by the Borrower, the Administrative Agent and the Required Lenders.
4.02. Documents; Fees. The Administrative Agent shall have
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received the following documents, each of which shall be satisfactory to the
Administrative Agent in form and substance:
(a) Corporate Documents. All documents that the
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Administrative Agent may reasonably request relating to the existence of the
Borrower, the corporate authority for, and the validity and enforceability of,
this Amendment, the Loan Documents as amended hereby, and any other matters
relevant hereto, all in form and substance satisfactory to the Administrative
Agent.
(b) Other Documents. Such other documents, approvals and
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opinions as the Administrative Agent may reasonably request.
(c) Fees. Receipt by the Administrative Agent (for its own
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account and the account of the Lenders, as applicable) of all fees required to
be received in connection with this Amendment.
Section 5. Extension Fee. In the event that the IPC Acquisition Loan
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is not prepaid in full by December 19, 2002, the Borrower shall pay to the
Administrative Agent for the account of the Lenders, a fee equal to twenty-five
(25) basis points multiplied by the outstanding principal balance of the IPC
Acquisition Loan as of December 19, 2002.
Section 6. Expenses. The Borrower shall pay (a) all out-of-pocket
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expenses of the Administrative Agent (including reasonable fees and
disbursements of counsel for the Administrative Agent) in connection with the
preparation of this Amendment and any other instruments or documents to be
delivered hereunder, any waiver or consent hereunder or thereunder or any
amendment hereof or thereof or any Default hereunder or thereunder; and (b) if
an Event of Default occurs, all out-of-pocket expenses incurred by the
Administrative Agent and each of the Lenders, including fees and disbursements
of counsel of the Administrative Agent and each Lender, in connection with such
Event of Default and collection and other enforcement proceedings resulting
therefrom, including out-of-pocket expenses incurred in enforcing the Credit
Agreement as amended by this Amendment, and the other Credit Documents.
Section 7. Miscellaneous. Except as herein provided, the Credit
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Agreement and all other Credit Documents shall remain unchanged and shall
continue to be in full force and effect and are hereby ratified and confirmed in
all respects. This Amendment may be executed in any
Amendment No. 1
number of counterparts, all of which taken together shall constitute one and the
same amendatory instrument, and any of the parties hereto may execute this
Amendment by signing any such counterpart. This Amendment shall be governed by,
and construed in accordance with, the law of the State of Missouri.
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Amendment No. 1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
INERGY PROPANE, LLC
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
WACHOVIA BANK, NATIONAL ASSOCIATION
(f/k/a First Union National Bank), as
Lender, as Swingline Lender and as
Issuing Lender
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Vice President
FLEET NATIONAL BANK, as Syndication
Agent and as Lender
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
BANK OF OKLAHOMA, N.A., as Documentation
Agent and as Lender
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
U.S. BANK, N.A. (f/k/a FIRSTAR BANK,
N.A. OVERLAND PARK, as Syndication Agent
and as Lender
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Senior Loan Officer
XXXXX FARGO BANK TEXAS, N.A., as Lender
By: /s/ J. Xxxx Xxxxxxxxx
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Name: J. Xxxx Xxxxxxxxx
Title: Vice President
TEAMBANK, N.A., as Lender
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President & CEO
THIS AMENDMENT ACCEPTED AND AGREED
TO THIS ___ DAY OF MAY, 2002, BY EACH OF
THE BELOW GUARANTORS:
INERGY, L.P.
By: Inergy GP, LLC, its Managing Partner
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
INERGY TRANSPORTATION, LLC
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
L & L TRANSPORTATION, LLC
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
INERGY SALES & SERVICE, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
IPCH ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
