EXHIBIT 10.9
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of June 16, 1999 (this "Amendment"), by and among NUCO2 INC., a Florida
corporation (the "Company"), 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, and
any other banks or other lending institutions that are or will become parties to
this Amendment (collectively, the "Lenders" and each individually, a "Lender"),
and SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION, as agent for the
Lenders.
PRELIMINARY STATEMENTS
The Company, Agent and the Lenders are parties to that certain
Amended and Restated Credit Agreement, dated as of May 4, 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; and
The Company, Agent and the Lenders desire to amend the Credit
Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. Amendments to Credit Agreement.
a. Section 10.02 of the Credit Agreement is hereby amended by
replacing subsection (c) in its entirety with the following subsection (c):
(c) to amend or modify the definitions of "Borrowing
Base", "Cost of Products Sold", "EBITDA Multiple", "Gross Margin",
"Gross Margin Factor", "Revolving Loan Commitment" or "Required
Lenders", to amend or modify Schedule 1.01, or the provisions of
Section 2.01 (ii)(E), Section 10.07 or of this Section 10.02;
b. Exhibit K to the Credit Agreement is hereby amended by replacing
such Exhibit K in its entirety with Annex A attached to this Amendment.
2. Other Agreements.
a. Company hereby affirms that each of the representations and
warranties of the Company contained in the Credit Agreement and in any of the
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, the Company warrants and represents
that the execution, delivery and performance by the Company of this Amendment
(i) are within the Company's corporate or similar power; (ii) have been duly
authorized by all necessary or proper corporate or similar action, and
shareholder or similar 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 and 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 of
the 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. 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. Company agrees to pay on demand all costs and expenses of the
Agent and the Lenders 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.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
NUCO2 INC.,
a Florida corporation
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxx
Chief Financial Officer and Treasurer
Attest: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxx
General Counsel and Secretary
SUNTRUST BANK, SOUTH FLORIDA,
NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.,
Individually and as Documentation Agent
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
By: Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Associate
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BANK-LEUMI LE-ISRAEL B.M.,
MIAMI AGENCY
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
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THE PROVIDENT BANK
By: /s/ Nick Jeviz
-----------------------------------
Name: Nick Jeviz
Title: Vice President
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IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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ACKNOWLEDGMENT OF GUARANTORS
Each of the Guarantors acknowledges and agrees to the terms of the
foregoing First Amendment to Amended and Restated 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 made and delivered as of June 16,
1999.
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]
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