EXHIBIT 10.39
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
VALLEY NATIONAL GASES INCORPORATED
a Pennsylvania corporation
By: : /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, CFO
VALLEY NATIONAL GASES DELAWARE, INC.,
a Delaware corporation
By: : /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, CFO
BANK ONE, NA, as Lender and as Agent
By: /s/ Xxxxxx X. XxXxxxxx
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Printed: Xxxxxx X. XxXxxxxx
Title: First Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxxxx
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Printed: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
NATIONAL CITY BANK, as Lender and as
Syndication Agent
By: /s/ R E Xxxxxx
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Printed: Xxxxx Xxxxxx
Title: Vice President
THE HUNTINGTON NATIONAL BANK, as Lender
and as Documentation Agent
By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxx X. Xxxxxx
Title: Vice President
WESBANCO BANK, INC.
By: /s/ Xxxxx X. Xxxx
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Printed: Xxxxx X. Xxxx
Title: Senior Vice President
SKY BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Printed: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
FIFTH THIRD BANK
By: /s/ X. X. Xxxxxxx
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Printed: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
