Exhibit 10.1
FOURTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "Amendment") made as of September 28, 2000 by and among NUCO2
INC., a Florida corporation (the "Company"), SUNTRUST BANK, a Georgia banking
corporation (formerly named SunTrust Bank, South Florida, National Association,
a national banking association) ("SunTrust"), BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC., a Delaware corporation (the "Documentation Agent"), THE
PROVIDENT BANK, an Ohio banking corporation, BANK LEUMI LE-ISRAEL B.M., Miami
Agency, IBJ WHITEHALL BUSINESS CREDIT CORPORATION, a New York corporation,
▇▇▇▇▇▇▇▇ BANK, N.A., a national banking association, and any other banks or
other lending institutions that are or will become parties to the Credit
Agreement (as defined below) (collectively, the "Lenders" and each individually,
a "Lender"), and SUNTRUST BANK, a Georgia banking corporation (formerly named
SunTrust Bank, South Florida, National Association, a national banking
association), as agent for the Lenders.
PRELIMINARY STATEMENTS:
The Company, Agent and the Lenders are parties to that certain
Amended and Restated Revolving Credit Agreement dated as of May 4, 1999, as
amended by that certain First Amendment to Amended and Restated Revolving Credit
Agreement dated as of June 16, 1999 and as amended by that certain Second
Amendment and Waiver to Amended and Restated Revolving Credit Agreement dated as
of February 7, 2000, as amended by that Third Amendment to Amended and Restated
Revolving Credit Agreement dated as of May 12, 2000, (the "Credit Agreement";
capitalized terms used herein and not defined herein shall have the meanings
assigned to them in the Credit Agreement), pursuant to which the Lenders made
and continue to make certain financial accommodations to the Company;
The Company has requested, and the Lenders have agreed, to amend a
financial covenant and to make certain other amendments on the terms and subject
to the conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Amendment to Credit Agreement.
a. Section 1.01 of the Credit Agreement is hereby amended by (i)
adding the following new definition in proper alphabetical order:
"New Preferred Stock" shall have the meaning set forth
in Section 7.04.
(ii) replacing the definition of "Consolidated Net Worth" in its
entirety with the following:
"Consolidated Net Worth" shall mean, as of the date of
determination, the sum of, without duplication, (a) total
shareholders' equity of the Company and its Subsidiaries on a
consolidated basis determined in accordance with GAAP, (b) the 8%
Convertible Preferred Stock and (c) the New Preferred Stock.
(iii) replacing the last sentence of the definition of
"Indebtedness" in its entirety with the following:
"Notwithstanding the foregoing, Indebtedness shall exclude the 8%
Convertible Preferred Stock and the New Preferred Stock."
b. Section 7.04 of the Credit Agreement is hereby amended by
replacing such Section 7.04 in its entirety with the following:
"SECTION 7.04 Minimum Net Worth. The Company shall at
all times maintain its Consolidated Net Worth greater than a Minimum
Net Worth, equal to (i) $37,600,000, plus (ii) fifty percent (50%)
of the cumulative Consolidated Net Income for each fiscal quarter
beginning after the fiscal quarter ending on June 30, 2000
(specifically not including any Consolidated Net Loss for any fiscal
quarter), plus (iii) the cumulative net proceeds of all equity
offerings, except for the 8% Convertible Preferred Stock.
Notwithstanding anything to the contrary in the foregoing sentence,
the Company shall at all times maintain its Consolidated Net Worth
greater than a Minimum Net Worth, equal to (i) $40,000,000, plus
(ii) fifty percent (50%) of the cumulative Consolidated Net Income
for each fiscal quarter beginning after the fiscal quarter ending on
June 30, 2000 (specifically not including any Consolidated Net Loss
for any fiscal quarter), plus (iii) the cumulative net proceeds of
all equity offerings, except for the 8% Convertible Preferred Stock
and except for an additional issuance of preferred stock of up to
$10,000,000 (the "New Preferred Stock"), provided, however, that
such New Preferred Stock is issued on or before January 31, 2001
and, provided further, that the definitions of "Consolidated Net
Worth" and "Indebtedness" and Section 8.09 (c) in the Senior
Subordinated Note Purchase Agreement are amended upon terms and
conditions satisfactory in all respects to the Required Lenders.
2. Conditions Precedent. This Amendment shall become effective upon
satisfaction of the following conditions:
a. The Agent shall have received one or more duly executed
counterparts of this Amendment signed by each of the parties hereto.
b. The Agent shall have received such other documents as any Lender
may reasonably request.
3. Other Agreements.
a. The Company hereby affirms that each of the representations and
warranties of the Company contained in the Credit Agreement and in any other
Loan Documents (except to the extent that any such representation or warranty
expressly relates solely to an earlier date and for changes therein permitted or
contemplated by the Credit Agreement) is correct in all material respects on and
as of the date hereof and after giving effect to this Amendment. In addition,
with respect to this Amendment, Company warrants and represents that the
execution, delivery and performance by Company of this Amendment (i) are within
the Company's corporate power; (ii) have been duly authorized by all necessary
or proper corporate action; (iii) are not in contravention of any provision of
the Company's certificate of incorporation or bylaws; (iv) will not violate any
law or regulation, or any order or decree of any Governmental Authority; (v)
will not conflict with or result in the breach or termination of, constitute a
default under or accelerate any performance required by, any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which the
Company is a party or by which the Company or any of its property is bound; (vi)
will not result in the creation or imposition of any Lien upon any of the
property of the Company other than those in favor of the Agent for the benefit
of the Lenders, all pursuant to the Loan Documents; and (vii) do not require the
consent or approval of any Governmental Authority. Company further represents
and warrants that this Amendment has been duly executed and delivered for the
benefit of or on behalf of the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms.
b. As amended hereby, all terms of the Credit Agreement and the
other Loan Documents shall be and remain in full force and effect and shall
constitute the legal, valid, binding and enforceable obligations of the Company
to the Agent and the Lenders. To the extent any terms and conditions in any
other Loan Documents shall contradict or be in conflict with any terms or
conditions of the Credit Agreement, after giving effect to this Amendment, such
terms and conditions are hereby deemed modified and amended accordingly to
reflect the terms and conditions of the Credit Agreement as modified and amended
hereby.
c. The Company hereby restates, ratifies and reaffirms each and
every term and condition set forth in the Credit Agreement and the other Loan
Documents, effective as of the date hereof, and represents that, after giving
effect to this Amendment, no Default or Event of Default has occurred and is
continuing as of the date hereof.
d. In connection with the preparation, execution, delivery and
enforcement of this Amendment, the closing hereof, and any other transactions
contemplated hereby, the Company agrees to pay to the Lenders an amendment fee
equal to .25% of the Commitments payable in two equal installments. The first
installment shall be due and payable on the date hereof and the second
installment shall be due and payable on or before February 1, 2001; provided
however,
if the New Preferred Stock is issued on or before January 31, 2001, then the
Lenders agree to waive payment of the second installment.
e. The Company agrees to pay on demand all costs and expenses of the
Agent in connection with the preparation, execution, delivery and enforcement of
this Amendment, the closing hereof, and any other transactions contemplated
hereby, including the fees and out-of-pocket expenses of the Agent's counsel. In
addition, the Company agrees to pay all legal fees and expenses actually
incurred through the date hereof to the Agent or Agent's counsel, King &
Spalding, on or before December 10, 2000.
f. On the date hereof, the Company shall pay to SunTrust Equitable
Securities Corporation a fee in accordance with the terms of a fee letter
between the Company and SunTrust Equitable Securities Corporation.
g. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original and all of which, taken together,
shall constitute one and the same instrument.
h. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAWS OF CONFLICTS), OF THE STATE OF FLORIDA
AND ALL APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed under seal by their respective officers thereunto duly
authorized, as of the date first above written.
NUCO2 INC.,
a Florida corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Financial Officer and Treasurer
Attest: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
General Counsel and Secretary
SUNTRUST BANK
individually and as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.,
individually and as Documentation Agent
By:________________________________
Name:
Title:
By:_________________________________
Name:
Title:
BANK-LEUMI LE-ISRAEL B.M.,
MIAMI AGENCY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
THE PROVIDENT BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
Senior Vice President
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
▇▇▇▇▇▇▇▇ BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
ACKNOWLEDGMENT OF GUARANTORS
Each of the Guarantors acknowledges and agrees to the terms of the
foregoing Fourth Amendment to Amended and Restated Revolving Credit Agreement,
and further acknowledges and agrees that (i) all of the obligations of the
Company shall continue to constitute "Guaranteed Obligations" covered by the
Amended and Restated Guaranty Agreement dated as of May 4, 1999 executed by the
undersigned, and (ii) the Amended and Restated Guaranty Agreement is and shall
remain in full force and effect on and after the date hereof, and (iii) the
foregoing agreement shall in no way release, discharge, or otherwise limit the
obligations of such Guarantor under the Amended and Restated Guaranty Agreement.
This Acknowledgment of Guarantors is made and delivered as of
September 28, 2000.
GUARANTORS:
NUCO2 ACQUISITION CORP.,
a Florida corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[CORPORATE SEAL]
▇▇▇▇ COMPRESSED GASES, INC.,
a New Jersey corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[CORPORATE SEAL]
