Exhibit 10.22
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT") is executed as of the 28th day of June, 2002 (the "AMENDMENT
EFFECTIVE DATE"), 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, INDIANA, NATIONAL ASSOCIATION, a national banking
association ("BANK ONE"), LASALLE BANK NATIONAL ASSOCIATION, a national banking
association ("LASALLE"), FIRSTAR, N.A. (formerly, Star Bank, National
Association), a national banking association with its principal office in
Cincinnati, Ohio ("FIRSTAR"), BANK OF AMERICA, N.A. (successor to NationsBank,
N.A.), a national banking association ("B OF A"), NATIONAL CITY BANK, a national
banking association ("NATIONAL CITY"), THE HUNTINGTON NATIONAL BANK, a national
banking association ("HUNTINGTON"), WESBANCO BANK, INC. "WESBANCO"), and SKY
BANK ("SKY BANK") (collectively, the "ORIGINAL SIGNATORY LENDERS"), National
City, as syndication agent ("SYNDICATION AGENT"), and Bank One, as
administrative and collateral agent for the Lenders (in such capacity, the
"AGENT"; Syndication Agent, and Agent being collectively referred to as the
"AGENTS"), and Fifth Third Bank ("FIFTH THIRD").
Recitals
1. The Company, VNGI, VNGDI, the Original Signatory Lenders, and the
Agents are parties to a Second Amended and Restated Credit Agreement, dated as
of May 1, 2000, as amended (the "CREDIT AGREEMENT").
2. 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 (other than Firstar and B of A) are
willing to amend the Credit Agreement as provided in this Amendment.
Amendment
NOW, THEREFORE, in consideration of the Recitals, 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. Assignment and Transfer of Commitments.
(a) Effective as of the Amendment Effective Date, each of the Original
Signatory Lenders irrevocably sells and assigns to the Signatory Lenders,
without recourse, and each Signatory Lender irrevocably purchases and
assumes from the Original Signatory Lenders, without recourse, a portion
of their respective Commitments, Revolving Loans Commitment Percentages of
the Revolving Loans, Term Loan Commitment Percentages of the Term Loan,
and Commitment Percentages under the Credit Agreement and the rights,
interests and obligations associated therewith, including, without
limitation, its rights and interests in respect of the Obligations (other
than Obligations under Interest Rate Agreements), such that on and after
the Amendment Effective Date, each Signatory Lender's Revolving Loans
Commitment Percentage, Term Loan Commitment Percentage, and Commitment
Percentage shall be as set forth in Exhibit B to this Amendment (in each
case, the "ASSIGNED INTEREST"). Each Signatory Lender who is an assignee
of an Assigned Interest (an "ASSIGNEE LENDER") hereby accepts and assumes
the rights, interests and obligations so assigned to it.
(b) Each Original Signatory Lender who is the assignor of an Assigned
Interest (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, as
amended by the Amendment, or any other Loan Document, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of
the Credit Agreement, any Collateral or any of the Loan Documents, except
that such Original Signatory Lender represents and warrants to each
Assignee Lender that such Original Signatory Lender is the legal and
beneficial owner of its Assigned Interest and that such interest is free
and clear of any lien or adverse claim; and (ii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Credit Party or the performance or observance by any
Credit Party of its obligations under the Credit Agreement or any of the
Loan Documents.
(c) In consideration of the assignment of the Assigned Interests, on the
Amendment Effective Date, each Assignee Lender shall pay to the Agent, for
the account the Original Signatory Lenders who are the assignors of the
Assigned Interests, an amount equal to the outstanding principal balance
of the Obligations corresponding to the portion of Assigned Interests
assigned to such Assignee Lender. From and after the Amendment Effective
Date, the Agent shall make all payments to the Assignee Lenders in respect
of the Assigned Interests.
(d) From and after the Amendment Effective Date, each Original Signatory
Lender who is the assignor of an Assigned Interest shall, to the extent of
the Assigned Interest assigned by it, relinquish its rights and be
released from its obligations under the Credit Agreement, as amended by
this Amendment.
3. Amendments to Credit Agreement. Effective as of the 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 each of the following new definitions:
"Amendment" means the Amendment to Second Amended and Restated
Credit Agreement dated as of the Amendment Effective Date, among the
Credit Parties, the Lenders, and the Agents.
"Amendment Effective Date" means June 28, 2002.
"Old Term Loan" means the term loan extended to the Company under
Section 2.04 of the Agreement prior to the Amendment Effective Date.
"Signatory Lender" means (i) prior to the Amendment Effective Date,
those Lenders identified as the Signatory Lenders in the preamble to
this Agreement, and (ii) from and after the Amendment Effective
Date, Bank One, LaSalle, National City, Huntington, WesBanco, Sky
Bank, and Fifth Third Bank.
(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:
"Agent" means (i) prior to the Amendment Effective Date, those
parties identified as the Agents in the preamble to this Agreement,
and (ii) from and after the Amendment Effective Date, the Agent and
the Syndication Agent.
"Applicable LOC Fee Percentage" means the rate per annum at which
the commission due on each Letter of Credit will be calculated,
which rate shall be determined by reference to the Ratio of Total
Funded Debt to EBITDA in accordance with the following table:
Ratio of
Total Funded Debt to EBITDA Applicable LOC Fee Percentage
--------------------------- -----------------------------
3.75 or above 2.75%
3.50 to 3.74 2.625%
3.00 to 3.49 2.375%
2.50 to 2.99 2.125%
2.00 to 2.49 1.75%
Below 2.00 1.50%
The Applicable LOC Fee Percentage shall be determined on the
Amendment Effective Date on the basis of the Ratio of Total Funded
Debt to EBITDA for the Credit Parties and their respective
Subsidiaries in effect on the Amendment Effective Date (which the
Company and the Lenders agree for purposes of the Applicable LOC Fee
Percentage, the Applicable Spread and the Applicable
Unused Commitment Fee Percentage is greater than 3.75) and shall be
redetermined, based on the Ratio of Total Funded Debt to EBITDA as
of the close of each fiscal quarter of the Company ending after June
30, 2002, concurrently with each adjustment to the "Ratio of Total
Funded Debt to EBITDA" (as provided in the definition of Ratio of
Total Funded Debt to EBITDA in this Agreement), with such
redetermined Applicable LOC Fee Percentage to be effective as and
for the period provided in the definition of "Ratio of Total Funded
Debt to EBITDA."
"Applicable Spread" means the percentage per annum to be taken into
account in determining any LIBOR-based Rate and any Prime-based Rate
as provided in this Agreement, which number shall be determined by
reference to the Ratio of Total Funded Debt to EBITDA in accordance
with the following table:
Ratio of Total Funded If Determining a If Determining a
Debt to EBITDA Prime-based Rate LIBOR-based Rate
-------------- ---------------- ----------------
3.75 or above 1.0% 2.75%
3.50 to 3.74 0.875% 2.625%
3.00 to 3.49 0.625% 2.375%
2.50 to 2.99 0.375% 2.125%
2.00 to 2.49 0% 1.75%
less than 2.00 0% 1.50%
The Applicable Spread shall be determined on the Amendment Effective
Date on the basis of the Ratio of Total Funded Debt to EBITDA for
the Credit Parties and their respective Subsidiaries in effect on
the Amendment Effective Date, as provided in the definition of
"Applicable LOC Fee Percentage" in this Agreement, and shall be
redetermined, based on the Ratio of Total Funded Debt to EBITDA as
of the close of each fiscal quarter of the Company ending after June
30, 2002, concurrently with each adjustment to the "Ratio of Total
Funded Debt to EBITDA" (as provided in the definition of Ratio of
Total Funded Debt to EBITDA in this Agreement), with such
redetermined Applicable Spread be effective as and for the period
provided in the definition of "Ratio of Total Funded Debt to
EBITDA."
"Applicable Unused Commitment Fee Percentage" means the percentage
per annum determined by reference to the Ratio of Total Funded Debt
to EBITDA in accordance with the following table:
Ratio of
Total Funded Debt to EBITDA Applicable Unused Commitment Fee Percentage
--------------------------- -------------------------------------------
3.75 or above 0.50%
3.50 to 3.74 0.50%
3.00 to 3.49 0.375%
2.50 to 2.99 0.375%
2.00 to 2.49 0.35%
Below 2.00 0.30%
The Applicable Unused Commitment Fee Percentage shall be determined
on the Amendment Effective Date on the basis of the Ratio of Total
Funded Debt to EBITDA in effect on the Amendment Effective Date, as
provided in the definition of "Applicable LOC Fee Percentage" in
this Agreement, and shall be redetermined, based on the Ratio of
Total Funded Debt to EBITDA as of the close of each fiscal quarter
of the Company ending after June 30, 2002, concurrently with each
adjustment to the "Ratio of Total Funded Debt to EBITDA" (as
provided in the definition of Ratio of Total Funded Debt to EBITDA
in this Agreement), with such redetermined Applicable Unused
Commitment Fee Percentage to be effective as and for the period
provided in the definition of "Ratio of Total Funded Debt to
EBITDA."
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, which shall
include the official interpretations thereof by the Financial
Accounting Standards Board, consistently applied (from and after the
date hereof) and for the period as to which such accounting
principles are to apply, provided that for purposes of calculations
to determine compliance with the covenants in Section 5.01(g),
"GAAP" shall mean generally accepted accounting principles in the
United States of America on the Amendment Effective Date, including
official interpretations thereof by the Financial Accounting
Standards Board, excluding SFAS 141, 142 and 133, consistently
applied for the period from and after the Amendment Effective Date
and for the period to which such accounting principles are to apply.
Except as otherwise provided in this Agreement, to the extent
applicable, all computations and determinations as to accounting or
financial matters and all Financial Statements to be delivered
pursuant to this Agreement shall be made and prepared in accordance
with GAAP (including principles of consolidation where appropriate),
and, to the extent applicable, all accounting or financial terms
shall have the meanings ascribed to such terms by GAAP.
"Loan Documents" means, collectively, this Agreement, the Revolving
Notes, the Term Notes, the Company Security Agreement, the Company
Pledge Agreement, the Parent Guaranties, the Parent Pledge
Agreements, the Parent Security Agreements, the Subsidiary
Guaranties, the Subsidiary Security Agreements, the Intercreditor
Agreements, any and all Reimbursement Agreements, the Agent Fee
Agreement, the Master Agreement and any and all Interest Rate
Agreements which at any time from and after the Closing Date may be
made between the Company and any of the Lenders (including without
limitation any Interest Rate Agreement between the Company and B of
A outstanding on the Amendment Effective Date), and all other
instruments, agreements and documents executed and delivered or to
be delivered by any Person pursuant to or by virtue of this
Agreement, as each of the foregoing may be amended, modified,
extended, renewed, supplemented and/or restated from time to time
and at any time, and when used in the singular form, means any of
the Loan Documents, as the context requires.
"Maximum Availability" means $75,000,000.00 or such greater amount
as may be established pursuant to Section 2.02(g) of this Agreement.
If an Event of Default or an Unmatured Event of Default has occurred
and is continuing and the Agent shall have notified the Company of
the election of the Required Lenders to take any action specified in
Section 7.02 of this Agreement, the Maximum Availability shall be
automatically reduced to zero (0) dollars without any action on the
part of or the giving of any additional notice to the Company by the
Lenders or the Agent.
"Scheduled Revolving Loans Maturity Date" means June 27, 2005, or
such later date as may be established pursuant to the terms of
Section 2.02(f) of this Agreement.
"Scheduled Term Loan Maturity Date" means June 27, 2005.
(c) Amendment of Section 2.02 (b). Section 2.02 (b) of the Credit
Agreement is amended and restated in its entirety to read as follows:
The obligation of the Company to repay the Revolving Loans shall be
evidenced by promissory notes executed by the Company to each of the
Revolver Lenders in the form of Exhibit E attached to the Amendment
(as the same may be amended, modified, extended, renewed,
supplemented, replaced and/or restated from time to time and at any
time, the "REVOLVING NOTES"). So long as no Event of Default or
Unmatured Event of Default shall have occurred and be continuing and
until the Revolving Loans Maturity Date, the Company may borrow,
repay (subject to the requirements of Section 2.06 of this
Agreement) and reborrow under the Revolving Notes on any Banking
Day, provided that
Company shall not be entitled to receive and the Revolver Lenders
shall not be obligated to make any Advance: (i) at any time an Event
of Default or an Unmatured Event of Default has occurred or is
continuing; (ii) if the amount of such Advance would exceed the
amount of the Remaining Availability as of the date of such Advance;
or (iii) if after making such Advance the aggregate principal
balance of the Revolving Loans would exceed the Maximum Revolver
Availability. Each Advance shall be conditioned upon receipt by the
Agent from the Company of an Application for Revolving Loans Advance
and an Officer's Certificate, provided that the Agent may, at its
discretion, make a disbursement upon the oral request of the Company
made by an Authorized Officer, or upon a request transmitted to the
Agent by telecopy or by any other form of written electronic
communication (all such requests for Advances being hereafter
referred to as "INFORMAL REQUESTS"). The Agent shall promptly give
each Revolver Lender telephonic notice (confirmed in writing, which
may be by telecopy) of each Advance request. In so doing, the Agent
may rely on any informal request which shall have been received by
it in good faith from a Person reasonably believed to be an
Authorized Officer. Each informal request shall be promptly
confirmed by a duly executed Application for a Revolving Loans
Advance and Officer's Certificate if the Agent so requires and shall
in and of itself constitute the representation of the Company that
no Event of Default or Unmatured Event of Default has occurred and
is continuing or would result from the making of the requested
Advance, that the requested Advance would not exceed the Remaining
Availability then outstanding, and that the making of the requested
Advance would not cause the aggregate principal balance of the
Revolving Loans to exceed the Maximum Revolver Availability. All
borrowings and reborrowings and all payments shall be in amounts of
not less than One Hundred Thousand Dollars ($100,000), except for
payment of the entire aggregate principal balance of the Revolving
Loans, except for special prepayments of principal required under
the terms of Section 2.06 of this Agreement, and except as provided
in Section 2.05(a) with respect to LIBOR Advances. Upon receipt of
an Application for a Revolving Loans Advance, or at the Agent's
discretion upon receipt of an informal request for an Advance and
upon compliance with any other conditions of lending stated in
Section 6.01 of this Agreement applicable to the Revolving Loans,
the Agent shall disburse the amount of the requested Advance to the
Company as provided in Section 2.02(c). Except as the Agent and the
Revolver Lenders may otherwise determine in their absolute
discretion, no Advance will be made on the day the Agent receives
the Application for a Revolving Loans Advance or informal
request for Advance is received by the Agent unless such Application
or request is received by the Agent prior to 12:00 noon,
Indianapolis, Indiana time. Advances by each Revolver Lender and
payments by the Company shall be recorded by each Revolver Lender on
its books and records, and the principal amount outstanding from
time to time, plus interest payable thereon, shall be determined by
reference to the books and records of each Revolver Lender. The
Revolver Lenders' books and records shall be presumed prima facie to
be correct as to such matters.
(d) Amendment of Section 2.02 (g). The first sentence of Section 2.02 (g)
of the Credit Agreement is amended and restated in its entirety to read as
follows:
The Company may, at any time, request the Revolver Lenders in
writing to increase the total Commitments of the Revolver Lenders
with respect to the Revolving Loans, provided that (i) such increase
shall not cause the aggregate total Revolving Loans Commitments to
exceed One Hundred Million Dollars ($100,000,000.00), and (ii) no
Event of Default shall have occurred or be continuing.
(e) Amendment of Section 2.03 (a)(1) and (2). Section 2.03 (a)(1) and
Section 2.03(a)(2) of the Credit Agreement are amended and restated in
their entireties to read as follows:
(1) The aggregate Letter of Credit Exposure shall not at any time
exceed the lesser of (A) Fifteen Million Dollars ($15,000,000) or
(B) the Maximum Availability at such time minus the aggregate
outstanding principal balance of all Revolving Loans at such time;
(2) The Company shall not request and Bank One shall have no
obligation to issue any Letter of Credit: (i) at any time any Event
of Default or Unmatured Event Default shall have occurred and be
continuing; (ii) at any time after the Revolving Loans Maturity
Date; (iii) if, after giving effect to such issuance, the aggregate
Letter of Credit Exposure would exceed the lesser of (A) Fifteen
Million Dollars ($15,000,000) or (B) the Maximum Availability then
outstanding minus the then aggregate outstanding principal balance
of all Revolving Loans; (iv) if the face amount of such Letter of
Credit would exceed the then outstanding Remaining Availability; or
(v) for any purpose other than those permitted hereunder;
(f) Amendment of Section 2.04(a). Section 2.04 (a) of the Credit Agreement
is amended and restated in its entirety to read as follows:
(a) The Term Loan -- General. Each Term Lender severally agrees,
subject to the terms and conditions of this Agreement, to loan to
the Company the principal amount equal to its Term Loan Commitment
Percentage of Fifteen Million Dollars ($15,000,000.00) for the term
period beginning on the Amendment Effective Date and ending on the
Term Loan Maturity Date (collectively, the "TERM LOAN").
The proceeds of the Term Loan shall be disbursed on the Amendment
Effective Date, and shall be used, first, to refinance the Old Term
Loan, and second, to pay a portion of the principal of the Revolving
Loans.
(g) Amendment of Section 2.04(b). Section 2.04 (b) of the Credit Agreement
is amended and restated in its entirety to read as follows:
(b) The Term Notes. The obligation of the Company to repay the Term
Loan shall be evidenced by promissory notes executed by the Company
to each of the Term Lenders in the form of Exhibit F attached to the
Amendment (as the same may be amended, modified, extended, renewed,
supplemented, replaced and/or restated from time to time and at any
time, the "TERM NOTES"). The principal of the Term Loan shall be
repayable in equal quarterly installments of $750,000.00 each, which
quarterly installments shall be due and payable on the last Banking
Day of September, 2002, and on the last Banking Day of each
successive calendar quarter thereafter until the Term Loan Maturity
Date, at which time the entire aggregate principal balance of the
Term Loan and all unpaid, accrued interest thereon, shall be due and
payable in full without demand. Subject to the contemporaneous
payment of any amounts which may be due the Term Lenders pursuant to
Section 2.05(b) of this Agreement, the principal of the Term Loan,
upon not less than two (2) Banking Days' prior written notice to the
Agent from the Company, may be prepaid at any time in whole or in
part, provided that any partial prepayment shall be in an amount
which is a minimum of $1,000,000 and an integral multiple of One
Hundred Thousand Dollars ($100,000), and provided further that all
partial prepayments shall be applied to the latest maturing
installments of principal payable under the Term Loan in inverse
order of maturity.
(h) Amendment of Section 5.01 (g). Section 5.01 (g) of the Credit
Agreement is amended and restated in its entirety to read as follows:
(g) Financial Covenants. The Credit Parties shall observe each of
the following financial covenants:
(1) Consolidated Net Worth. The Credit Parties and their
respective Subsidiaries shall maintain at all times from and
after the Amendment Effective Date Consolidated Net Worth at a
level not less than (i) $35,500,000.00, plus (ii) Seventy-Five
Percent (75%) of the cumulative Consolidated Net Income for
each fiscal quarter of the Company ending after March 31,
2002, provided that cumulative Consolidated Net Income shall
not be reduced by the amount of the net loss for any fiscal
quarter in which the Credit Parties and their respective
subsidiaries on a consolidated basis suffers a net loss, plus
(iii) One Hundred Percent (100%) of the amount of any new paid
in capital or other new equity received by any Credit Party
from any Person who is not a Credit Party provided, that, such
amount shall in no event be less than zero.
(2) Fixed Charge Coverage Ratio. As of the close of each
fiscal quarter of the Company ending after the Closing Date,
the Credit Parties and their respective Subsidiaries, for the
period of the four consecutive fiscal quarters which end on
such close, shall have a Fixed Charge Coverage Ratio of not
less than: (i) 1.10:1 through March 30, 2003, and (ii) 1.15:1
on March 31, 2003, and thereafter.
(3) Ratio of Total Funded Debt to EBITDA. As of the close of
each fiscal quarter of the Company ending after the Closing
Date, the Credit Parties and their respective Subsidiaries,
for the period of the four consecutive fiscal quarters which
end on such close, shall have a Ratio of Total Funded Debt to
EBITDA of not greater than (i) 4.00:1 through September 29,
2002, (ii) 3.75:1 on September 30, 2002, through December 30,
2002, (iii) 3.50:1 on December 31, 2002, through March 30,
2003, (iv) 3.25:1 on March 31, 2003, through December 30,
2003, (v) 3.00:1 on December 31, 2003, through June 29, 2004,
and (vi) 2.75:1 on and after June 30, 2004.
(i) Amendment of Section 5.02(a). Section 5.02(a) of the Credit Agreement
is amended by placing a period after the phrase "Credit Parties" the last
time it appears in that section, and deleting all the text which follows
that phrase.
(j) Amendment of Section 5.02(k). Section 5.02(k) of the Credit Agreement
is amended and restated in its entirety to read as follows:
(k) Lease Obligations. Neither the Credit Parties nor any of their
respective Subsidiaries nor any Guarantor shall incur obligations under
any Capital Leases. The obligations of the
Credit Parties and their respective Subsidiaries on a consolidated basis
payable during any fiscal year under all operating leases (other than
operating leases of vehicles) shall not exceed in the aggregate the sum of
$4,500,000.
(k) Amendment of Section 5.02(p). Section 5.02(p) of the Credit Agreement
is amended and restated in its entirety to read as follows:
(p) Capital Expenditures. The Credit Parties and their respective
Subsidiaries on a consolidated basis shall not make Capital
Expenditures (excluding Budgeted Acquisition Capital Expenditures):
(i) during the period beginning July 1, 2002, through June 30, 2003,
which in the aggregate on a consolidated basis exceed $6,400,000;
and (ii) during the period beginning July 1, 2003, through June 30,
2004, which in the aggregate on a consolidated basis exceed
$6,800,000; and (iii) during the period beginning July 1, 2004,
through June 30, 2005, which in the aggregate on a consolidated
basis exceed $7,200,000; provided that, the maximum permitted
Capital Expenditures for each such twelve-month period shall be
increased by an amount equal to 4% of the Company's sales during
such period that are attributable to New Acquisitions that occur
after the Amendment Effective Date, as determined by the Agent in
its reasonable discretion.
(l) Amendment of Section 8.01. The first sentence of the Section 8.01 is
amended and restated in its entirety to read as follows:
This Article specifies rights and obligations among and between the
Lenders and the Agent and the Syndication Agent.
(m) Amendment of Section 8.03(d). The first sentence of Section 8.03(d) is
amended and restated in its entirety to read as follows:
With respect to the Loan Documents, Bank One and National City, each
in its capacity as a Lender hereunder, shall have the same rights
and powers hereunder as any other Lender and may exercise the same
as though it were not acting as the Agent or Syndication Agent,
respectively.
(n) Amendment of Exhibit B. Exhibit B to the Credit Agreement is amended
and restated in its entirety to read as Exhibit B attached to this
Amendment.
4. 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 and all
agreements and documents delivered pursuant hereto 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 all agreements and documents delivered pursuant hereto; and
(iii) this Amendment and all agreements and documents delivered pursuant
hereto by each of the Credit Parties are the legal, valid and binding
obligations of each of the Credit Parties, as a signatory thereto, and
enforceable against each of the Credit Parties in accordance with the
terms thereof.
(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 on and as of the Amendment Effective Date
with the same force and effect as if made on and as of the Amendment
Effective Date, 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 Amendment Effective Date.
(c) No Default or Unmatured Default has occurred and is continuing or will
exist under the Credit Agreement as of the Amendment Effective Date.
5. Conditions. The obligation of the Lenders and the Agents to
execute and to perform this Amendment shall be subject to full satisfaction of
the following conditions precedent on or before the Amendment Effective Date:
(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 Amendment Effective
Date.
(b) This Amendment shall have been duly executed by each of the Credit
Parties and delivered to the Agent.
(c) The Company shall have executed and delivered to the Agent Revolving
Notes payable to each of the Revolver Lenders in form and substance the
same as Exhibit E to this Amendment.
(d) The Company shall have executed and delivered to the Agent Term Notes
payable to each of the Term Lenders in form and substance the same as
Exhibit F to this Amendment.
(e) 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
Messrs. Xxxxx & Xxxxxxx, special counsel to the Agent.
(f) The Agent shall have received such additional agreements, documents
and certifications, as may be reasonably requested by the Required
Lenders.
6. 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, the Lenders, and the Agents of this Amendment and each of the other
documents, instruments and agreements to be executed pursuant hereto, and agree
that neither the provisions of this Amendment nor any action taken or not taken
in accordance with the terms of this First 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 Agents that its Guaranty remains in full force and effect and is
its valid and binding obligation.
7. Appraisal. The Company agrees to pay to the Agent, on demand,
costs and expenses incurred by the Agent in connection with the appraisal of the
Company's cylinders and tanks performed in connection with this Amendment. The
Agent may debit such amount to any deposit account of the Company carried with
the Agent without further authority.
8. 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 parties hereto, their respective successors and assigns and legal
representatives.
9. 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 with 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.
10. 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
Agents 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective authorized
signatories as of the Amendment Effective Date.
VALLEY NATIONAL GASES, INC.,
a West Virginia corporation
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
CFO
----------------------------------
VALLEY NATIONAL GASES INCORPORATED
a Pennsylvania corporation
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
CFO
----------------------------------
VALLEY NATIONAL GASES DELAWARE, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
CFO
----------------------------------
BANK ONE, INDIANA, NATIONAL ASSOCIATION,
as Lender and as Agent
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Printed: Xxxxxx X. Xxxxxxx
----------------------------
Title: First Vice President
----------------------------
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Printed: Xxxxx X. Xxxxxx
----------------------------
Title: Vice President
------------------------------
U.S. BANK NATIONAL ASSOCIATION
(f/k/a FIRSTAR, N.A.)
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Printed: Xxxxx X. Xxxxxxx
----------------------------
Title: Vice President
------------------------------
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Printed: Xxxxxxx X. Xxxxxxxxx
----------------------------
Title: SVP
------------------------------
NATIONAL CITY BANK,
as Lender and as Syndication Agent
By: /s/ RE Xxxxxx
---------------------------------
Printed: Xxxxx X. Xxxxxx
----------------------------
Title: Vice President
------------------------------
THE HUNTINGTON NATIONAL BANK,
as Lender and as Documentation Agent
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Printed: Xxxx X. Xxxxxx
----------------------------
Title: Vice President
------------------------------
WESBANCO BANK, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Printed: Xxxxx X. Xxxx
----------------------------
Title: Senior Vice President
------------------------------
SKY BANK
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Printed: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Senior Vice President
------------------------------
FIFTH THIRD BANK
By: /s/ XX Xxxxxxx
---------------------------------
Printed: Xxxxxxxxxxx X. Xxxxxxx
----------------------------
Title: Vice President
------------------------------
