Exhibit 10.9
SECOND AMENDMENT AND WAIVER TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT AND WAIVER TO AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT (this "Amendment") made as of February 7, 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
this Agreement (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 and as
amended by that certain First Amendment to Amended and Restated Revolving Credit
Agreement dated as of June 16, 1999 (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
certain financial covenants 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. Amendments to Credit Agreement.
a. Section 1.01 of the Credit Agreement is hereby amended by
replacing the definition of "Agent" in its entirety with the following
definition:
"Agent" shall mean SunTrust Bank, a Georgia banking
corporation (formerly named SunTrust Bank, South Florida, National Association,
a national banking association) as agent for the Lenders hereunder and under the
other Loan Documents, and each successor agent.
b. Section 7.02 of the Credit Agreement is hereby amended by
replacing such Section 7.02 in its entirety with the following:
SECTION 7.02 Interest Coverage Ratio. The Company shall
not permit the Interest Coverage Ratio as of the last day of any
fiscal quarter of the Company to be less than (i) 1.50 to 1.00 for
the period beginning October 1, 1999 through and including December
31, 1999; (ii) 1.65 to 1.00 for the period beginning January 1, 2000
through and including March 31, 2000; (iii) 1.80 to 1.00 for the
period beginning April 1, 2000 through and including June 30, 2000;
(iv) 2.00 to 1.00 for the period beginning July 1, 2000 through and
including September 30, 2000; (v) 2.15 to 1.00 for the period
beginning October 1, 2000 through and including December 31, 2000;
(vi) 2.35 to 1.00 for the period beginning January 1, 2001 through
and including March 31, 2001; (vii) 2.45 to 1.00 for the period
beginning April 1, 2001 through and including June 30, 2001; and
(viii) 2.75 to 1.00 thereafter.
c. 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 Net Worth greater than the 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 March 31, 1999 (specifically not
including any Consolidated Net Loss for any fiscal quarter), plus
(iii) the cumulative net proceeds of all equity offerings made by
the Company after the Closing Date.
2. Waiver.
a. The Company has informed the Agent and the Required Lenders that
the Company has not been in compliance with certain provisions of the Credit
Agreement. Therefore, as requested by the Company, the Required Lenders hereby
waive any Default or Event of Default arising under Section 8.01(d) of the
Credit Agreement caused by any such failure of the Company to comply with the
financial covenant with respect to Minimum Net Worth set forth in Section 7.04
of the Credit Agreement, for the period from October 1, 1999 through February 7,
2000, for this one time only, and no future waiver shall be construed by the
waiver hereby given.
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
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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 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 Company's counsel.
e. 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.
(Remainder of Page Intentionally Left Blank)
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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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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.,
individually and as Documentation Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Sr. Associate
BANK-LEUMI LE-ISRAEL B.M.,
MIAMI AGENCY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE PROVIDENT BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇ BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
ACKNOWLEDGMENT OF GUARANTORS
Each of the Guarantors acknowledges and agrees to the terms of the
foregoing Second 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
February 7, 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]
