Exhibit 10.1
FIFTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(this "Amendment") made as of December 5, 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,
XXXXXXXX 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, 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 certain Third Amendment to Amended and Restated
Revolving Credit Agreement dated as of May 12, 2000, and as amended by that
certain Fourth Amendment to Amended and Restated Revolving Credit Agreement
dated as of September 28, 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 adding the
following new definition in proper alphabetical order:
"New Common Stock" shall have the meaning set forth in Section
7.04.
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 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 $10,000,000 from additional
issuances of (a) preferred stock of up to $10,000,000 (the "New
Preferred Stock") and (b) common stock of up to $10,000,000 (the "New
Common Stock"), provided, however, that such New Preferred Stock and
New Common 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. The Lenders agree that the first installment of the amendment fee
payable by the Company pursuant to Section 3(d) of that certain Fourth Amendment
to Amended and Restated Revolving Credit Facility dated as of September 28, 2000
by and among the Company and the Lenders (the "Fourth Amendment") has been paid
in full and that the second installment of the amendment fee pursuant to Section
3(d) of the Fourth Amendment shall be due and payable on or before February 1,
2001; provided however, if the New Preferred Stock and/or New Common Stock is
issued on or before January 31, 2001, then the Lenders agree to waive payment of
such 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. 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.
g. 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/ Xxxxx Xxxxxxxxx
-----------------------
Xxxxx Xxxxxxxxx
Chief Financial Officer and Treasurer
Attest: /s/ Xxxx X. Xxxxxxxx
----------------------------
Xxxx X. Xxxxxxxx
General Counsel and Secretary
SUNTRUST BANK
individually and as Agent
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
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/ Xxxxxxx Xxxxx
---------------------
Xxxxxxx Xxxxx
Vice President
THE PROVIDENT BANK
By: /s/ Xxxx Xxxxx
----------------------
Xxxx Xxxxx
Senior Vice President
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------
Xxxx X. Xxxxxxxx
Vice President
XXXXXXXX BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Xxxxxxx X. Xxxxx
Vice President
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx
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
December 5, 2000.
GUARANTORS:
NUCO2 ACQUISITION CORP.,
a Florida corporation
By: /s/ Xxxx X. Xxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
[CORPORATE SEAL]
XXXX COMPRESSED GASES, INC.,
a New Jersey corporation
By: /s/ Xxxx X. Xxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
[CORPORATE SEAL]
