Exhibit 10.5
FOURTH AMENDMENT, dated as of September 29, 1995 (this
"Amendment") to the REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated as of
October 7, 1994 (as amended and as the same may be further amended,
supplemented, modified or extended from time to time, the "Agreement"),
among NATIONAL PROPANE CORPORATION, a Delaware corporation (the
"Borrower"), each of the several lenders from time to time parties thereto
(each a "Lender" and, collectively, the "Lenders"), THE BANK OF NEW YORK,
as Administrative Agent for the Lenders (the "Administrative Agent") and
THE FIRST NATIONAL BANK OF BOSTON and INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION, as Co-Agents.
W I T N E S S E T H:
WHEREAS, the Borrower desires to acquire All Seasons Acquisition
Corporation, a Delaware corporation ("ASAC"), which is currently an
indirect wholly owned subsidiary of the Guarantor, in a transaction
pursuant to which all of the issued and outstanding shares of Common
Stock, par value $1.00 per share, of ASAC (the "ASAC Stock") will be
transferred to the Borrower in exchange for the issuance by the Borrower
to NPC Holdings, Inc. ("Holdings"), a Delaware corporation and a wholly
owned subsidiary of the Guarantor, of 30 shares of Common Stock, par value
$1.00 per share of the Borrower (the "Borrower Stock") (such transaction
hereinafter being referred to as the "ASAC Acquisition"); and
WHEREAS, in connection with the ASAC Acquisition, ASAC has
entered into a Pledge and Security Agreement (the "ASAC Pledge"), dated as
of even date herewith, between it and The Bank of New York as agent for
the Creditors (as defined therein); and
WHEREAS, the Borrower has requested that a financial covenant of
the Borrower contained in the Agreement be amended as set forth more fully
hereinbelow and take certain other measures in connection with the
transactions contemplated hereby; and
WHEREAS, the parties desire to amend the Agreement to reflect
the foregoing.
NOW, THEREFORE, the parties hereby agree as follows:
Section 1. Definitions; References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Agreement shall have the meaning assigned to such term in the Agreement.
Each reference to "hereof", "hereunder", "herein" and "hereby" and each
other similar reference contained in the Agreement shall, from and after
the date hereof, refer to the Agreement as amended hereby.
Section 2. Amendment of Section 1.01(b) of the Agreement.
Section 1.01(b) of the Agreement is hereby amended as follows:
(a) The definition of the term "Permitted Acquisition" is
amended to read in its entirety as follows:
"'Permitted Acquisition' means (i) the acquisition
by the Borrower or a Subsidiary of the Borrower,
of any Person (or any stock or other equity
interests therein) or a substantial part of the
assets used in the business of any Person,
provided that (a) the Person (or the assets) being
acquired is engaged or used in the distribution of
propane gas; (b) such acquisition shall not be
opposed by the boards of directors (or other
person or persons performing similar functions) of
any of the parties to such acquisition; (c) if the
purchase price for such acquisition exceeds
$10,000,000 in cash, property, net assumption of
liabilities for Borrowed Money or otherwise (or
$5,000,000 if such acquisition is to be financed,
directly or indirectly, in whole or in part with
proceeds of Loans), the written approval of the
Required Lenders shall have been obtained prior to
consummation of such acquisition; (d) after giving
effect to such acquisition, the Leverage Ratio
shall not exceed the lesser of 4.25x and the
maximum Leverage Ratio permitted by Section
8.03(b); and (e) after giving effect to such
acquisition, no Default or Event of Default shall
have occurred and be continuing and (ii) the ASAC
Acquisition (as defined in the preamble to the
Fourth Amendment to this Agreement), provided that
the ASAC Acquisition shall be a Permitted
Acquisition hereunder only if (X) the conditions
set forth in subsections (i)(a), (b), (c) and (e)
above shall have been satisfied and (Y) the
Leverage Ratio, after giving effect to the ASAC
Acquisition, shall not exceed 4.75x."
(b) The definition of the term "Restricted
Payments" is amended to read in its entirety as follows:
"'Restricted Payments' means (a) the declaration
or payment of any dividends (other than a non-cash
dividend effected by forgiveness of indebtedness)
or distributions on any shares of any class of
capital stock of the Borrower, application of any
property or assets of the Borrower to the purchase
or acquisition, redemption or other retirement of,
or setting apart of any sum for the payment of any
distributions on, or for the purchase, redemption
or other retirement of, any shares of any class of
capital stock of the Borrower or of any Subsidiary
of the Borrower (other than a Wholly Owned Subsid-
iary) and (b) any payment or other advance made,
directly or indirectly, by the Borrower to any
Affiliate (other than a Wholly Owned Subsidiary)
of the Borrower; provided that 'Restricted
Payments' shall not include any payments made by
the Borrower (i) pursuant to the Tax Sharing
Agreement, (ii) to the Guarantor of the lease
termination portion of the Restructuring Charge in
an amount not exceeding $1,400,000, (iii) to the
Guarantor in settlement of liabilities represent-
ing obligations of the Borrower owing to the
Guarantor for past-due management fees (not
exceeding $1,044,000) and advances for the payment
of the September 1, 1994 installment of interest
on the Subordinated Debt (not exceeding
$3,215,000), to the extent such liabilities are
accrued on the Borrower's balance sheet dated as
of September 30, 1994, (iv) in satisfaction of
Borrower's obligations under employee benefit
programs for employees of the Borrower and its
Subsidiaries, (v) to Chesapeake Insurance Company
pursuant to that certain Promissory Note, dated
June 1, 1994, of the Borrower (without giving
effect to any amendment or modification thereof)
in an amount not exceeding $1,250,000 or (vi) to
the Guarantor in settlement of liabilities in
respect of advances by the Guarantor to the
Company between September 1, 1995 and Septem-
ber 29, 1995, in an amount not exceeding
$2,500,000.
Section 3. Amendment of Section 4.06 of the
Agreement. Section 4.06 of the Agreement is hereby amended
to read in its entirety as follows:
"Section 4.06. Uses of Proceeds. It is under-
stood and agreed that funds provided by
(a) Revolving Credit Loans made and Letters of
Credit issued under the General Purposes Sublimit
may be used for (i) general corporate purposes of
the Borrower and (ii) payments, in an amount not
exceeding $2,500,000, to the Guarantor in settle-
ment of liabilities in respect of advances by the
Guarantor to the Borrower between September 1,
1995 and September 29, 1995, (b) revolving Credit
Loans made under the Acquisition Sublimit may be
used only for the purpose of making Permitted
Acquisitions, (c) Tranche A Term Loans and Tranche
B Term Loans may be used for the purpose of repay-
ing the Subordinated Debt in full, (d) Revolving
Credit Loans, Tranche A Term Loans and Tranche B
Term Loans may be used for the purpose of making
all or part of a Restricted Payment or Payments to
the Guarantor or its Affiliates and (e) Tranche C
Term Loans may be used only to prepay $20,000,000
of the Tranche A Term Loan."
Section 4. Amendment of Section 8.02(e) of the
Agreement. Section 8.02(e) is hereby amended to (a) delete
the word "and" following the semicolon in the last line of
subsection (i) of Section 8.02(e), (b) delete the period at
the end of the last line of subsection (ii) of Section
8.02(e) and substitute therefor the following: "; and", and
(c) add to Section 8.02(e) a new subsection (iii) to read in
its entirety as follows:
"(iii) at any time when (A) the Leverage
Ratio of the Borrower as shown on the schedule
most recently delivered to the Administrative
Agent and the Lenders pursuant to Section
8.01(a)(iii) shall be 3.50x or less and (B) no
Default or Event of Default shall have occurred
and be continuing, the Borrower may elect to
either (i) repurchase shares of Common Stock, par
value $1.00 per share, of the Borrower (the
"Shares"), for an aggregate price which may not
exceed $4,250,000 or (ii) declare and pay a
special dividend in respect of its Shares, the
aggregate amount of which, taken together with any
other dividends that may be declared in respect of
its Shares pursuant to this subsection
(iii)(B)(ii), may not exceed $4,250,000, provided,
however, that no such repurchase or dividend, as
the case may be, shall be permitted unless the
Borrower previously shall have delivered to the
Administrative Agent a schedule demonstrating to
the reasonable satisfaction of the Administrative
Agent that (X) the pro forma Leverage Ratio of the
Borrower in respect of the date of the schedule
most recently delivered as provided herein but
giving effect to such repurchase or dividend, as
the case may be, does not exceed 3.50x and (Y) the
pro forma Fixed Charge Coverage Ratio of the
Borrower in respect of the date of the schedule
most recently delivered as provided herein but
giving effect to such repurchase or dividend, as
the case may be (by including the aggregate amount
of payments in respect of such repurchase or
dividend, as the case may be, in the calculation
of the Borrower's Consolidated Scheduled Debt
Amortization as if such aggregate amount were a
payment of principal as contemplated by the
definition of Consolidated Scheduled Debt
Amortization), does not exceed the minimum Fixed
Charge Coverage Ratio permissible pursuant to
Section 8.03(c)."
Section 5. Amendment of Section 8.03(b) of the
Agreement. Section 8.03(b) of the Agreement is hereby
amended to read in its entirety as follows:
"Period Ratio
From the Closing Date
through December 30, 1995 ....... 4.75x
From December 31, 1995
through March 30, 1996 .......... 4.50x
From March 31, 1996
through June 29, 1996 ........... 4.40x
From June 30, 1996
through December 30, 1996 ....... 4.25x
From December 31, 1996
through December 30, 1997 ........ 4.20x
From December 31, 1997
through December 30, 1998 ........ 3.80x
From December 31, 1998
through December 30, 1999 ........ 3.50x
From December 31, 1999
through December 30, 2000 ........ 3.25x
From December 31, 2000
through December 30, 2001 ........ 3.00x
From December 31, 2001
through December 30, 2002 ........ 2.50x
From December 31, 2002 and
thereafter ....................... 2.00x".
Section 6. Representations and Warranties. The
Borrower represents and warrants to the Administrative Agent
and the Lenders that (a) the execution and delivery of this
Amendment by it has been duly authorized by all necessary
corporate action, (b) this Amendment constitutes the valid
and legally binding obligation of the Borrower enforceable
in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, fraudulent transfer and other
similar laws relating to or affecting creditors' rights
generally and to general equity principles, (c) the Borrower
Stock has been duly authorized and will be duly and validly
issued, fully paid and non-assessable, and the certificate
or certificates evidencing the Borrower Stock will be in
duly authorized form and (d) the execution, delivery and
performance of this Amendment does not violate or contravene
the terms of the Borrower's charter documents, by-laws or
any agreement or instrument binding on the Borrower or its
property.
Section 7. Covenant. The Borrower hereby cove-
nants to the Administrative Agent and the Lenders that all
of the issued and outstanding shares of the Borrower Stock
will be issued to Holdings in connection with the ASAC
Acquisition and no shares of the Borrower Stock will be
issued to any other Person.
Section 8. Section 3.07(b)(iii) Inapplicable.
Notwithstanding anything in the Agreement to the contrary,
the requirements of Section 3.07(b)(iii) of the Agreement
shall not apply in respect of the ASAC Acquisition.
Section 9. Governing Law. This Amendment shall
be governed by and construed in accordance with the internal
laws of the State of New York.
Section 10. Counterparts. This Amendment may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Section 11. Conditions Precedent. The
effectiveness of this Amendment shall be subject to the
conditions precedent that (i) the ASAC Pledge shall have
been executed and delivered by ASAC and (ii) this Amendment
shall have been executed and delivered by the Borrower, the
Required Lenders and the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed as of the date first
above written.
NATIONAL PROPANE CORPORATION
By /s/ Terry D. Weikel
Name:
Title: Sr. Vice President and
Chief Financial Officer
THE BANK OF NEW YORK, as
Administrative Agent and as a
Lender
By ROBERT W. TOWNS
Name:
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By MICHAEL KANE
Name:
Title: Managing Director
THE FIRST NATIONAL BANK OF CHICAGO
By NATHAN L. BLOCH
Name:
Title: Vice President
FIRST AMERICAN NATIONAL BANK
By KELLI HALL-ERNST
Name:
Title: Corporate Bank Officer
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By ROBERT L. FELLOWS
Name:
Title: Vice President
USL CAPITAL CORPORATION
By CRAIG F. BRUZZONE
Name:
Title: Vice President
PILGRIM PRIME RATE TRUST
By KATHLEEN LENARCIC
Name:
Title: Assistant Portfolio
Manager
VAN KAMPEN MERRITT PRIME RATE
INCOME TRUST
By JEFFREY W. MAILLET
Name:
Title: Vice President and
Portfolio Manager
Triarc Companies, Inc., as Guarantor, hereby
consents to the foregoing Fourth Amendment,
TRIARC COMPANIES, INC.
By T.E. SHULTZ
Name:
Title: Vice President and
Assistant Treasurer