Exhibit 10.1
EXECUTION COPY
SEVENTH AMENDMENT dated as of June 18, 1999 (this
"Seventh Amendment"), to the Credit Agreement dated as
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of December 13, 1995 (as amended prior to the date
hereof, the "Credit Agreement"), among Star Gas Propane,
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L.P., a Delaware limited partnership (the "Borrower"),
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the lenders party thereto, The First National Bank of
Boston (now known as BankBoston, N.A.), as
Administrative Agent (the "Administrative Agent"), and
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NationsBank, N.A., as Documentation Agent (the
"Documentation Agent", and together with the
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Administrative Agent, the "Agents").
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The Borrower has requested the Agents and the Lenders to make certain
changes to the Credit Agreement. The parties hereto have agreed, subject to the
terms and conditions hereof, to amend the Credit Agreement as provided herein.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement (the Credit Agreement,
as amended by, and together with, this Seventh Amendment, and as hereinafter
amended, modified, extended or restated from time to time, being called the
"Amended Agreement").
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Accordingly, the parties hereto hereby agree as follows:
SECTION 1.01. Amendments to Section 1.01. (a) The definition of Tranche
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A Maturity Date in Section 1.01 of the Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
""Tranche A Maturity Date" shall mean June 30, 2001."
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(b) The definition of Tranche B Conversion Date in Section 1.01 of the
Credit Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
""Tranche B Conversation Date" shall mean September 30, 2000."
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(c) The definition of Tranche B Maturity Date in Section 1.01 of the
Credit Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
""Tranche B Maturity Date" shall mean September 30, 2003."
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SECTION 1.02. Amendment to Section 2.11(c). Section 2.11(c) of the
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Credit Agreement is hereby deleted in its entirety and the following is hereby
substituted in lieu thereof:
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last day of every third calendar month thereafter through September 30,
2003 (the due date of each such installment being called a "Tranche B
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Repayment Date"). The amount of any such installment payable on a Tranche B
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Repayment Date (other than September 30, 2003) shall be the lesser of (x)
$2,000,000 or (y) the amount, if any, necessary (after giving effect to any
reductions on account of the expiration after the Tranche B Conversion Date
of any Tranche B Letters of Credit) to reduce the sum of (i) the aggregate
principal amount of the Tranche B Term Loans outstanding immediately after
the Tranche B Conversion Date and (ii) the Tranche B Letter of Credit
Exposure outstanding immediately after the Tranche B Conversion Date by an
aggregate percentage of such sum equal to the percentage set forth opposite
such Repayment Date below:
December 31, 2000 69.23%
March 31, 2001 76.92%
June 30, 2001 84.62%
September 30, 2001 92.31%
December 31, 2001 100.00%
March 31, 2002 100.00%
June 30, 2002 100.00%
September 30, 2002 100.00%
December 31, 2002 100.00%
March 31, 2003 100.00%
June 30, 2003 100.00%
September 30, 2003 100.00%
On the Tranche B Repayment Date that is September 30, 2003, Borrower shall
repay the remaining principal and interest owing on all outstanding Tranche
B Term Loans and fully cash collateralize any then existing Tranche B
Letter of Credit Exposure. All payments under this paragraph (c) shall be
applied (I) first, to repay any outstanding Tranche B Term Loans and (II)
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second, after the Tranche B Term Loans have been paid in full, to reduce
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the Tranche B Letter of Credit Exposure. Any such payments so applied to
reduce the Tranche B Letter of Credit Exposure shall be deposited with the
Administrative Agent pursuant to the Cash Collateral Agreement as provided
in Section 2.21(k)."
SECTION 1.03 Amendment to Section 4.03(a). Section 4.03(a) of the Credit
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Agreement is hereby deleted in its entirety and the following is substituted in
lieu thereof:
"(a) At the time of and immediately after any Tranche B Revolving
Credit Borrowing made or any Tranche B Letter of Credit issued (i) on or
before June 30, 1999, the Leverage Ratio as of the date of such Borrowing
or issuance (after giving effect to the acquisition or Growth-Related
capital Expenditure for which such Borrowing or Letter of credit is being
used) shall be no greater than 5.00:1.00, (ii) after June 30, 1999 and on
or before September 30, 1999, the Leverage Ratio as of the date of such
Borrowing or issuance (after giving effect to the acquisition or Growth-
Related Capital
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Expenditure for which such Borrowing or Letter of Credit is being used)
shall be no greater than 5.25:1.00, (iii) after September 30, 1999 and on
or before November 29, 1999, the Leverage Ratio as of the date of such
Borrowing or issuance (after giving effect to the acquisition or Growth-
Related Capital Expenditure for which such Borrowing or Letter of Credit is
being used) shall be no greater than 5.25:1.00, (iv) after November 29,
1999 and on or before December 30, 1999, the Leverage Ratio as of the date
of such Borrowing or issuance (after giving effect to the acquisition or
Growth-Related Capital Expenditure for which such Borrowing or Letter of
Credit is being used) shall be no greater than 4.90:1.00 and (v) after
December 30, 1999, the Leverage Ratio as of the date of such Borrowing or
issuance (after giving effect to the acquisition or Growth-Related Capital
Expenditure for which such Borrowing or Letter of Credit is being used)
shall be no greater than 4.50:1.00; and, in the case of each such Borrowing
or issuance of each such Letter of Credit, the Borrower shall have prepared
and furnished to the Agents prior to such Borrowing or issuance pro forma
financial statements demonstrating the fulfillment of such condition to the
satisfaction of the Agents. For purposes of calculating the Leverage Ratio
as required by this Section 4.03(a), Consolidated Cash Flow for the
Reference Period shall mean the greater of (A) Consolidated Cash Flow for
the most recent period of four consecutive fiscal quarters prior to the
date of determination and (B) 50% of Consolidated Cash Flow for the most
recent period of eight consecutive fiscal quarters prior to the date of
determination."
SECTION 1.04. Amendment to Section 6.31(a). Section 6.31(a) of the Credit
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Agreement is hereby deleted in its entirety and the following is hereby
substituted in lieu thereof:
"(a) The Borrower will not permit the ratio on any day (the "date of
determination") of (i) Total Funded Debt as of the last day of the
Reference Period with respect to such date of determination to (ii)
Consolidated Cash Flow for such Reference Period to be greater than the
ratio set forth below opposite the calendar period during which such date
of determination occurs:
Calendar Period Ratio
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January 1, 1996 through 5.00:1.00
June 30, 1997
July 1, 1997 through 4.75:1.00
September 30, 1997
October 1, 1997 through 4.95:1.00
December 31, 1997
January 1, 1998 through 5.00:1.00
September 30, 1998
The period ending 5.40:1.00
December 31, 1998
January 1, 1999 through 5.00:1.00
June 30, 1999
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July 1, 1999 through 5.25:1.00
September 30, 1999
October 1, 1999 through 5.25:1.00
November 29, 1999
November 30, 1999 through 4.90:1.00
December 30, 1999
December 31, 1999 and thereafter 4.50:1.00"
SECTION 1.05. Amendment to Section 9.01. Section 9.01(c) of the Credit
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Agreement is hereby deleted in its entirety and the following is hereby
substituted in lieu thereof:
"(c) if to the Documentation Agent, to it at Three Xxxxx Center, 000
Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000-0000, Attention of Xxxxx
Xxxxxxxxx (Telecopy no. (000) 000-0000), with a copy to XxXxxxx Xxxxx
Battle & Xxxxxx LLP at NationsBank Corporate Center, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000-0000, Attention of Xxxxxx X. Xxxxxx
(Telecopy No. (000) 000-0000); and "
SECTION 1.06. Representations and Warranties. The Borrower hereby
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represents and warrants to each of the Agents and the Lenders, as follows:
(a) The representations and warranties set forth in Article III of the
Amended Agreement, and in each other Loan Document, are true and correct in
all material respects on and as of the date hereof and on and as of the
Seventh Amendment Effective Date (as hereinafter defined) with the same
effect as if made on and as of the date hereof or the Seventh Amendment
Effective Date, as the case may be, except to the extent such
representations and warranties expressly relate solely to an earlier date.
(b) Each of the Borrower and the Subsidiaries is in compliance with
all the terms and conditions of the Amended Agreement and the other Loan
Documents on its part to be observed or performed and no Default or Event
of Default has occurred or is continuing.
(c) The execution, delivery and performance by the Borrower of this
Seventh Amendment have been duly authorized by the Borrower.
(d) This Seventh Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with its
terms.
(e) The execution, delivery and performance by the Borrower of this
Seventh Amendment (i) will not violate (A) any provision of law, statute,
rule or regulation, or of the agreement of limited partnership of the
Borrower, (B) any order of
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any Governmental Authority or (C) any provision of any indenture, agreement
or other instrument to which the Borrower is a party or by which it or any
of its property may be bound and (ii) do not require any consents under,
result in a breach of or constitute (with notice or 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.
SECTION 1.07. Effectiveness. This Seventh Amendment shall become effective
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only upon satisfaction of the following conditions precedent (the first date
upon which each such condition has been satisfied being herein called the
"Seventh Amendment Effective Date"):
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(a) the Administrative Agent shall have received duly executed
counterparts of this Seventh Amendment which, when taken together,
bear the authorized signatures of the Borrower and the Required
Lenders.
(b) The Agents shall be satisfied that the representations and
warranties set forth in Section 1.06 are true and correct on and as of
the Seventh Amendment Effective Date.
(c) There shall not be any action pending or any judgment, order
or decree in effect which, in the judgment of the Agents or the
Lenders, is likely to restrain, prevent or impose materially adverse
conditions upon performance by the Borrower of its obligations under
the Amended Agreement.
(d) The Agents shall have received such other documents, legal
opinions, instruments and certificates relating to this Seventh
Amendment as they shall reasonably request and such other documents,
legal opinions, instruments and certificates shall be satisfactory in
form and substance to the Agents and the Lenders. All corporate and
other proceedings taken or to be taken in connection with this Seventh
Amendment and all documents incidental thereto, whether or not
referred to herein, shall be satisfactory in form and substance to the
Agents and the Lenders.
(e) The Borrower shall have paid all fees and expenses referred
to in Section 1.09 of this Seventh Amendment.
SECTION 1.08. APPLICABLE LAW. THIS SEVENTH AMENDMENT SHALL BE GOVERNED BY,
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AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO
THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA MAY APPLY.
SECTION 1.09. Expenses. The Borrower shall pay (i) all reasonable out-of-
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pocket expenses incurred by the Agents and the Lenders in connection with the
preparation, negotiations execution, delivery and enforcement of this Seventh
Amendment, including, but not limited to, the reasonable fees and disbursements
of counsel and (ii) an amendment fee in the aggregate amount of $231,250 (the
"Amendment Fee"), $138,750 of such Amendment Fee to be paid to BankBoston N.A.
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and $92,500 of such Amendment Fee to be paid to NationsBank, N.A.
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SECTION 1.10. Counterparts. This Seventh Amendment may be executed in any
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number of counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one agreement.
SECTION 1.11. Loan Documents. Except as expressly set forth herein, the
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amendments provided herein shall not by implication or otherwise limit,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Agents, the Trustee or the other Secured Parties under the Amended
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 Amended 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 Amended Agreement specifically referred to by such amendments.
Except as expressly amended herein, the Amended Agreement and the other Loan
Documents shall continue in full force and effect in accordance with the
provisions thereof. As used in the Amended Agreement, the terms "Agreement",
"herein", "hereinafter", "hereunder", "hereto" and words of similar import shall
mean, from and after the date hereof, the Amended Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh Amendment
to be duly executed by duly authorized officers, all as of the date first above
written.
STAR GAS PROPANE, L.P., as Borrower
By: Star Gas Corporation, its General Partner
by__________________________________________
Name:
Title:
BANKBOSTON, N.A.,
as Administrative Agent and as a Lender
by___________________________________________________
Name:
Title:
NATIONSBANK, N.A., as Documentation Agent
and as a Lender
by___________________________________________________
Name:
Title:
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