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THIRD MODIFICATION AGREEMENT
THIS THIRD MODIFICATION AGREEMENT (the "Third Modification") is entered
into as of June 15, 2001, by and among BLUE RHINO CORPORATION ("Borrower"), USA
LEASING, LLC ("USA"), RHINO SERVICES, LLC ("Services"), CPD ASSOCIATES, INC.
("CPD"), QUICKSHIP, INC. ("Quickship") UNIFLAME CORPORATION ("Uniflame" and,
collectively with USA, Services, CPD and Quickship, the "Guarantors") and BANK
OF AMERICA, N. A. ("Bank").
RECITALS
A. Bank has made revolving loans (the "Revolver") to Borrower pursuant
to the terms of: (a) that certain Second Amended and Restated Loan Agreement
between Bank and Borrower dated as of June 30, 2000 (as amended from time to
time, the "Loan Agreement") (unless otherwise defined herein, all capitalized
terms shall have the meaning ascribed to them in the Loan Agreement); (b) that
certain promissory note (the "Revolver Note") executed by Borrower in favor of
Bank and dated as of June 30, 2000 in the original principal amount of up to
$38,000,000; and (c) that certain Borrowing Base Agreement between Bank and
Borrower dated as of June 30, 2000 (as amended from time to time, the "Borrowing
Base Agreement").
B. Bank has also made revolving seasonal loans (the "Overline") to
Borrower pursuant to the terms of: (a) the Loan Agreement and the Borrowing Base
Agreement; and (b) that certain promissory note (the "Overline Note") executed
by Borrower in favor of Bank and dated as of June 30, 2000 in the original
principal amount of up to $10,000,000.
C. Bank and Borrower also have entered into an ISDA Master Agreement
and a certain Confirmation dated July 5, 2000 (collectively, the "SWAP
Agreement").
D. Each of the Guarantors is a wholly-owned subsidiary of the Borrower
and has previously executed a guaranty agreement guaranteeing all obligations of
Borrower to Bank.
E. Pursuant to the terms of that certain letter agreement dated as of
October 24, 2000, among Borrower, Bank and the Guarantors (the "Forbearance
Letter"), Bank agreed to forbear through November 29, 2000, from exercising any
of its remedies which arose due to the existence of certain events of default
identified in the Forbearance Letter.
F. Pursuant to the terms of the Forbearance Letter, the maturity date
of the Overline Note was changed to November 30, 2000 (the "Overline Maturity
Date"), and Borrower failed to pay all amounts due under the Overline Note to
Bank on or before the Overline Maturity Date.
G. The failure to pay all amounts due on the Overline Note on or before
the Overline Maturity Date constitutes an Event of Default (the "Overline
Maturity Default") under the Loan Agreement.
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H. Pursuant to the cross-default provisions of Section 8 of the Loan
Agreement and of the Revolver Note, the Overline Maturity Default also
constitutes an Event of Default under the Revolver Note and the other Loan
Documents (the "Revolver Cross-Default").
I. Borrower also is in default under the Loan Agreement as a result of
its failure to maintain (collectively, the "Existing Covenant Defaults"):
(a) a maximum total liabilities to Tangible Net Worth ratio of
2.75 to 1.0 from August 1, 2000, to October 30, 2000, as required by
Section 6.A.(i) of the Loan Agreement;
(b) a maximum Funded Debt to EBITDA no greater than (i) 3.75
to 1.0 from August 31, 2000, to October 30, 2000, and (ii) 3.50 to 1.0
from October 31, 2000, to January 30, 2001, each as required by Section
6.A.(ii) of the Loan Agreement; and
(c) a minimum Cash Flow Coverage Ratio of 1.2 to 1.0 at each
fiscal quarter end after June 30, 2000, each as required by Section
6.A.(iii) of the Loan Agreement.
J. The Overline Maturity Default, the Revolver Cross-Default and the
Existing Covenant Defaults are referred to herein collectively as the
"Acknowledged Events of Default."
K. The Bank, the Borrower and the Guarantors previously entered into
(i) that certain Forbearance and Modification Agreement dated as of January 31,
2001 (the "First Forbearance Agreement"), (ii) that certain Second Forbearance
and Modification Agreement dated as of March 1, 2001 (the "Second Agreement"),
(ii) that certain Third Forbearance Agreement dated as of May 1, 2001 (the
"Third Forbearance Agreement"), and under which the Bank agreed to forbear
through June 30, 2001 from exercising any of its rights and remedies arising
from the existence of the Acknowledged Events of Default, and agreed to continue
honoring Borrower's requests for advances under the Revolver pursuant to the
terms of the Loan Documents.
L. Notwithstanding the existence of the Acknowledged Events of Default,
Borrower and the Guarantors have asked Bank to modify the Loan Agreement, the
Borrowing Base Agreement and the Revolver Note and to continue extending credit
under the Revolver Note and to allow Borrower to borrow funds from Allied
Capital Corporation ("Allied") on a subordinated basis in order to fund, in
part, repayment of Borrower's obligations under the Overline Note and the
Revolver Note.
M. Bank has agreed to do so, but only upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged by all parties, the parties hereto agree as follows:
1. Estoppel and Acknowledgments. As of June 12, 2001, the outstanding
principal balance of the Revolver Note was no less than $38,000,000, and the
outstanding principal balance of the Overline Note was no less than $7,746,746,
which amounts constitute valid and
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subsisting obligations of Borrower to Bank that are not subject to any credits,
offsets, defenses, claims, counterclaims or adjustments of any kind. Borrower
acknowledges and affirms its obligations under the Loan Documents. The Borrower
and each of the Guarantors acknowledge the existence of, and its receipt of
notice of, the Acknowledged Events of Default.
2. Payments Against Overline Note and Revolver Note from Proceeds of
Allied Loan. Bank expressly consents to Borrower's and Guarantors' entering into
that certain Investment Agreement by and among, Borrower, Guarantors and Allied
Capital Corporation ("Allied") dated as of June 15, 2001, which provides,
inter alia, for Allied to invest $15,000,000 in Borrower and Guarantors in
exchange for senior subordinated debentures and warrants (the "Allied
Investment"). Bank further waives any default under the Loan Documents arising
from Borrower's and Guarantors' borrowing of funds under the Allied Investment.
Concurrent with the execution and delivery of this Third Modification, from the
net proceeds of the Allied Investment, Borrower will use $4,500,000 to pay down
the outstanding balance due under the Overline Note and will use the balance of
the funds to pay down the outstanding balance due under the Revolver Note.
3. Payments Against Overline Note from Proceeds Sale/Leaseback. In the
event that Borrower proceeds with and completes a sale and leaseback of or, in
the alternative, a conventional real estate financing transaction secured by,
the assets of R-4 Technical Center-North Carolina, LLC, a Delaware limited
liability company (the "R-4 Transaction"), Borrower will use all net proceeds
from that transaction (and, if necessary, additional funds from other sources)
to satisfy the remaining balance due under the Overline Note.
4. No Further Borrowing Under Overline Note. Notwithstanding the
$10,000,000 original principal amount of the Overline Note, as of the date of
this Agreement the Overline Committed Amount is no more than $7,746,746.
Borrower will not request, and Bank does not have any obligation to make, any
further advances under the Overline Note. Any amounts received by Bank and
applied to reduce the outstanding principal balance due under the Overline Note
will be permanent reductions to the Overline Committed Amount. Bank will apply
all amounts received from Borrower against the outstanding balance due under the
Revolver Note, except that the following amounts may be applied against the
outstanding balance due under the Overline Note: (a) $4,500,000 of the proceeds
of the Allied Investment, (b) the proceeds of any R-4 Transaction, (c) any
amount received from Borrower for payment of outstanding interest due under the
Overline Note, (d) any amount received with a request or instruction of the
Borrower that the amount be applied against the outstanding principal balance
due under the Overline Note, and (e) any amount received after any default under
the Revolver Note, the Overline Note, the Loan Agreement or any other loan
document.
5. Notice of Holder(s) of Allied Investment. Borrower will provide Bank
notice of each holder of the Allied Investment, upon incurrence of the Allied
Investment indebtedness and upon each transfer of which Borrower has received
written notice, if any, of all or any portion of the Allied Investment
Indebtedness. Such notice shall include the name, address, telephone number and
telefax number of each such holder.
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6. Acknowledgement of Lock Box Arrangement. To the extent not already
in place to the satisfaction of Bank, in its sole and independent discretion,
Borrower will establish and maintain at Bank one or more special lock box or
blocked accounts (collectively, the "Lock Box Account") for the collection of
the Accounts Receivable. The Lock Box Account will be subject to the Bank's
standard terms and conditions for such an account. Borrower will direct and
instruct its account debtors in writing to remit payment of any Accounts
Receivable to the Lock Box Account. If Borrower receives any checks or other
remittances against Accounts Receivable, it will hold such funds in trust for
benefit of Bank and, as promptly as possible, will deliver and turn over such
items to Bank in the identical form received (except for any necessary
endorsement). Borrower will have no right to receive funds from the Lock Box
Account. Bank will apply the proceeds from the Lock Box Account to the
outstanding indebtedness due under the Revolver.
7. Extension Fee. Concurrent with the execution and delivery of this
Third Modification, Borrower will pay Bank an extension fee (the "Extension
Fee") in the amount of $280,000.
8. Modifications to Revolver Note. The Revolver Note is modified as
follows:
a. In the upper, right-hand corner of the first page of the
Revolver Note, the phrase "Maturity Date: NOVEMBER 30, 2001" is deleted and is
replaced with the phrase "Maturity Date: December 31, 2002."
b. Section 1 of the Revolver Note is modified to read in its
entirety as follows:
1. RATE.
PRIME RATE. The Rate shall be the Prime Rate plus two percent
(2%) per annum; provided, however, that the Rate from and after
December 31, 2001, shall be the Prime Rate plus three percent (3%) per
annum in the event that the total of the Revolving Committed Amount and
the Overline Committed Amount (as each is defined in the Loan
Agreement) exceeds $28,000,000 on December 31, 2001. The "Prime Rate"
is the fluctuating rate of interest established by Bank from time to
time, at its discretion, whether or not such rate shall be otherwise
published. The Prime Rate is established by Bank as an index and may or
may not at any time be the best or lowest rate charged by Bank on any
loan.
Notwithstanding any provision of this Note, Bank does not intend to
charge and Borrower shall not be required to pay any amount of interest
or other charges in excess of the maximum permitted by the applicable
law of the State of North Carolina; if any higher rate ceiling is
lawful, then that higher rate ceiling shall apply. Any payment in
excess of such maximum shall be refunded to Borrower or credited
against principal, at the option of Bank.
c. Section 4 of the Revolver Note is modified to read in its
entirety as follows:
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4. PAYMENT SCHEDULE. All payments received hereunder shall be applied
first to the payment of any expense or charges payable hereunder or
under any other loan documents executed in connection with this Note,
then to interest due and payable, with the balance applied to
principal, or in such other order as Bank shall determine at its
option. Principal shall be paid in one installment of all principal
outstanding on December 31, 2002. Interest thereon shall be paid
monthly, commencing on July 2, 2001, and continuing on the same day of
each successive month thereafter, with a final payment of all interest
at the stated maturity of this Note.
[X] OTHER. This is the "Revolver Note" described in the Second Amended
and Restated Loan Agreement dated June 30, 2000, to which reference is
hereby made for additional provisions affecting this Note.
9. Modifications to Overline Note. The Overline Note is modified as
follows:
a. In the upper, right-hand corner of the first page of the
Overline Note, the phrase "Maturity Date: NOVEMBER 30, 2001" is deleted and is
replaced with the phrase "Maturity Date: December 31, 2002."
b. Section 1 of the Overline Note is modified to read in its
entirety as follows:
1. RATE.
PRIME RATE. The Rate shall be the Prime Rate plus two percent
(2%) per annum; provided, however, that the Rate from and after
December 31, 2001, shall be the Prime Rate plus three percent (3%) per
annum in the event that the total of the Revolving Committed Amount and
the Overline Committed Amount (as each is defined in the Loan
Agreement) exceeds $28,000,000 on December 31, 2001. The "Prime Rate"
is the fluctuating rate of interest established by Bank from time to
time, at its discretion, whether or not such rate shall be otherwise
published. The Prime Rate is established by Bank as an index and may or
may not at any time be the best or lowest rate charged by Bank on any
loan.
Notwithstanding any provision of this Note, Bank does not intend to
charge and Borrower shall not be required to pay any amount of interest
or other charges in excess of the maximum permitted by the applicable
law of the State of North Carolina; if any higher rate ceiling is
lawful, then that higher rate ceiling shall apply. Any payment in
excess of such maximum shall be refunded to Borrower or credited
against principal, at the option of Bank.
c. Section 4 of the Overline Note is modified to read in its
entirety as follows:
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4. PAYMENT SCHEDULE. All payments received hereunder shall be applied
first to the payment of any expense or charges payable hereunder or
under any other loan documents executed in connection with this Note,
then to interest due and payable, with the balance applied to
principal, or in such other order as Bank shall determine at its
option. Principal shall be paid in one installment of all principal
outstanding on December 31, 2002. Interest thereon shall be paid
monthly, commencing on July 2, 2001, and continuing on the same day of
each successive month thereafter, with a final payment of all interest
at the stated maturity of this Note.
[X] OTHER. This is the "Overline Note" described in the Second Amended
and Restated Loan Agreement dated June 30, 2000, to which reference is
hereby made for additional provisions affecting this Note.
d. Section 5 of the Overline Note is modified to read in its
entirety as follows:
5. REVOLVING FEATURE TERMINATED. Notwithstanding any other provisions
of this Note or any other documents executed in connection with this
Note, Bank has no further obligation to make any further advances under
this Note after November 30, 2000.
10. Modifications to the Loan Agreement. The Loan Agreement is modified
as follows:
a. Sections 1.G. and 1.S. of the Loan Agreement are modified
to read in their entirety as follows:
G. EBITDA. Earnings before interest expense, taxes,
depreciation and amortization and any non-cash gain or loss
attributable to Borrower's investment in the Bottling Company and any
non-recurring losses, excluding any original issue discounts for any
warrants issued by Borrower.
S. TANGIBLE NET WORTH. The amount of Borrower's shareholder
equity, determined in accordance with GAAP, minus goodwill.
b. Sections 2(A)(i) and 2(A)(ii) of the Loan Agreement are
modified to read in their entirety as follows:
A. Revolving Line of Credit. (i) Subject to the terms hereof, Bank
agrees to extend a revolving line of credit (the "Revolver") to
Borrower, in the original principal amount of up to Thirty Eight
Million and no/100 Dollars ($38,000,000.00) through December 31, 2002,
for the purpose of financing and increasing the Borrower's revolving
line of credit, financing Borrower's short term working capital needs,
including but not limited to payments under letters of credit issued
for the benefit of Borrower, and financing acquisitions by Borrower.
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The amount of Bank's agreement to lend pursuant to the Revolver (the
"Revolving Committed Amount") will be reduced permanently by any
prepayment of principal prior to the Revolver Maturity Date that
Borrower and Bank mutually agree in writing is to be applied as a
permanent reduction of the Revolving Committed Amount. The Revolver
will be available during the period commencing on the date hereof and
continuing until December 31, 2002 (which date, as extended in
accordance with the terms hereof, shall be the "Revolver Maturity
Date"). Borrower may from time to time borrow, repay and re-borrow,
subject to the Borrowing Base Agreement attached hereto as Exhibit "A"
and by reference made a part hereof, and the Borrowing Base set forth
therein (the "Borrowing Base"). It is provided, however, that the
aggregate face amount of letters of credit issued by Bank for the
account of Borrower pursuant to the Revolver shall not at any time
exceed Ten Million and no/100 Dollars ($10,000,000.00). Borrower shall
execute and deliver to Bank a promissory note (the "Revolver Note") in
the principal amount of Thirty Eight Million and no/100 Dollars
($38,000,000.00), which Revolver Note shall bear interest and be
payable in accordance with the terms set forth hereinbelow.
(ii) Interest and Principal. Interest and principal will
accrue and will be paid as set forth in the Revolver Note.
c. Sections 2(B)(i) and 2(B)(ii) of the Loan Agreement are
modified to read in their entirety as follows:
B. Overline. (i) Subject to the terms hereof, Bank agrees to extend a
revolving seasonal line of credit (the "Overline") to Borrower, in the
original principal amount of up to Ten Million and no/100 Dollars
($10,000,000.00), for the purpose of financing Borrower's short-term
working capital needs, specifically, payments to be received under
documentary letters of credit issued for the benefit of Borrower for
goods sold to Wal-Mart. The Overline will be available during the
period commencing on the date hereof and continuing until December 31,
2002 (which date, as extended in accordance with the terms hereof,
shall be the "Overline Maturity Date"), provided that advances under
the Overline may be obtained only during the period from June 1, 2000,
through November 30, 2000. From June 1, 2000, through November 30,
2000, Borrower may from time to time borrow, repay and re-borrow,
subject to the Borrowing Base Agreement attached hereto as "Exhibit A"
and by reference made a part hereof, and the Borrowing Base set forth
therein (the "Borrowing Base") for the purpose of reimbursing the Bank
for drafts drawn under the letters of credit issued by the bank.
Borrower may not borrow or re-borrow under the Overline after November
30, 2000. The amount of Bank's agreement to lend pursuant to the
Overline (the "Overline Committed Amount") will be reduced permanently
by any prepayment of principal prior to the Overline Maturity Date.
Borrower shall execute and deliver to Bank a promissory note (the
"Overline Note") in the principal amount of $10,000,000, which Overline
Note shall bear interest and be payable in accordance with the terms
set forth hereinbelow.
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(ii) Interest and Principal. Interest and principal will
accrue and will be paid as set forth in the Overline Note.
d. Section 6.A. of the Loan Agreement is modified to read in
its entirety as follows:
A. FINANCIAL CONDITION. Maintain Borrower's financial
condition as follows, each determined in accordance with GAAP applied
on a consistent basis throughout the period involved, except to the
extent modified by the following definitions:
(i) measured as of each date set forth below,
maintain a ratio of total liabilities to Tangible Net Worth as
follows:
(a) not greater than 4.38 to 1.0 as of
July 31, 2001;
(b) not greater than 3.97 to 1.0 as of
October 31, 2001;
(c) not greater than 3.59 to 1.0 as of
January 31, 2002;
(d) not greater than 3.31 to 1.0 as of
April 30, 2002;
(e) not greater than 3.00 to 1.0 as of
July 31, 2002; and
(f) not greater than 3.00 to 1.0 as of
October 31, 2002;
(ii) measured quarterly on a cumulative basis for the
four quarters preceding each date set forth below, maintain a
ratio of EBITDA to interest expense as follows:
(a) not less than 1.97 to 1.0 as of
July 31, 2001;
(b) not less than 2.00 to 1.0 as of
October 31, 2001;
(c) not less than 2.00 to 1.0 as of
January 31, 2002;
(d) not less than 2.00 to 1.0 as of
April 30, 2002;
(e) not less than 2.00 to 1.0 as of
July 31, 2002; and
(f) not less than 2.00 to 1.0 as of
October 31, 2002;
(iii) measured quarterly on a cumulative basis for
the four quarters preceding each date set forth below,
maintain EBITDA as follows:
(a) not less than $10,113,000 as of
July 31, 2001;
(b) not less than $10,842,000 as of
October 31, 2001;
(c) not less than $12,642,000 as of
January 31, 2002;
(d) not less than $14,349,000 as of
April 30, 2002;
(e) not less than $14,969,000 as of
July 31, 2002; and
(f) not less than $15,334,000 as of
October 31, 2002;
(iv) measured as of each date set forth below,
maintain a minimum Net Worth as follows:
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(a) not less than $44,211,000 as of
July 31, 2001;
(b) not less than $44,482,000 as of
October 31, 2001;
(c) not less than $44,608,000 as of
January 31, 2002;
(d) not less than $45,045,000 as of
April 30, 2002;
(e) not less than $47,333,000 as of
July 31, 2002; and
(f) not less than $47,783,000 as of
October 31, 2002; and
(v) maintain a ratio of funded debt (measured as of
each date set forth below) to EBITDA (measured on a cumulative
basis for the four quarters preceding each date set forth
below) as follows:
(a) not greater than 5.35 to 1.0 as of
July 31, 2001;
(b) not greater than 4.62 to 1.0 as of
October 31, 2001;
(c) not greater than 4.00 to 1.0 as of
January 31, 2002;
(d) not greater than 3.75 to 1.0 as of
April 30, 2002;
(e) not greater than 3.50 to 1.0 as of
July 31, 2002; and
(f) not greater than 3.50 to 1.0 as of
October 31, 2002.
c. Section 8 of the Loan Agreement is modified to add the
following additional language at the end of the paragraph:
Borrower also shall be in default if it should fail to timely and
properly observe, keep or perform any term, covenant, agreement or
condition in that certain Investment Agreement among Borrower, certain
of Borrower's affiliates and/or subsidiaries, and Allied Capital
Corporation dated as of June 15, 2001, as such Investment Agreement
may be amended from time to time, or in any other agreement or document
(as amended from time to time) with Allied Capital Corporation or its
successors and assigns, and such default shall continue for a period of
thirty (30) days.
11. Modifications to Borrowing Base Agreement. The Borrowing Base
Agreement is modified as follows:
a. In paragraph 1, the definitions of "Maximum Amount,"
"Borrowing Base" and "Eligible Accounts Receivable" each are modified to read in
their entirety as follows:
"Maximum Amount" shall mean the lesser of the Borrowing Base
and $38,000,000.
The "Borrowing Base" at any time shall be equal to 80% of
Eligible Accounts Receivable, 50% of Cylinder Inventory, 50% of
Eligible Inventory, and 50% of Net Eligible Equipment Value, as such
terms are defined herein or in the Agreement.
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"Eligible Accounts Receivable" shall mean all accounts
receivable of Borrower which have been created in the ordinary course
of Borrower's business for which Borrower's right to receive payment is
absolute and not contingent upon the fulfillment of any condition
whatsoever, and shall not include:
(i) for all customers other than Home Depot, Lowes, Sears,
Wal-Mart and K-Mart, any invoice which is more than sixty-one (61) days
past due; and for customers Home Depot, Lowes, Sears, Wal-Mart and
K-Mart, any invoice which is more than ninety (90) days past due;
(ii) any account which represents an obligation of a customer
when 50% or more of Borrower's accounts from such customer are not
eligible pursuant to the foregoing formula;
(iii) any account for which there exists a right of set off,
defense or discount (except regular discounts allowed in the ordinary
course of business to promote prompt payment) and for which no defense
or counterclaim has been asserted;
(iv) any account which represents an obligation of any local,
state or federal governmental agency or entity;
(v) any account which arises out of a contract or order which,
by its terms, forbids or makes void or unenforceable any assignment by
Borrower to Bank of the account receivable arising with respect
thereto;
(vi) any account arising from a "sale on approval," "sale or
return," "consignment," or subject to any other repurchase or return
agreement;
(vii) any account which represents an obligation of a customer
which is not a resident of the United States or its territories unless
such account is supported by a letter of credit in form and substance
acceptable to the Bank;
(viii) any account which arises from the sale or lease to or
performance of services for, or represents an obligation of, an
employee, affiliate, partner, parent or Subsidiary of Borrower,
including but not necessarily limited to R-4 Technical Center - North
Carolina, LLC, a Delaware limited liability company; and
(ix) any unapplied credits over 61 days old.
b. The following definition of "Net Eligible Equipment Value
is inserted into paragraph 1:
"Net Eligible Equipment Value" shall mean all machinery and
equipment owned by the Borrower (excluding leasehold improvements,
computer equipment, truck graphics, computer software and laptops)
valued after appropriate reduction for depreciation determined in
accordance with GAAP applied on a consistent basis throughout the
period involved.
c. Section 3(ii) is modified to read in its entirety as
follows:
(ii) Bi-Weekly Borrowing Base Certificate. Commencing on
Monday, July 2, 2001, and continuing on the Monday (or, if such Monday
is a federal
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holiday, then the Tuesday) of every other week thereafter, Borrower
will submit a Borrowing Base Certificate in the form attached hereto as
Exhibit A-1
d. In Exhibit A-1 to the Borrowing Base Agreement, items 7 and
8 are modified to read in their entirety as follows:
7. 50% of Net Eligible Equipment Value $ _____________
8. Maximum Loan Amount $ _____________
[the lesser of $38,000,000 or the
Revolving Committed Amount]
12. Exhibit "A" to Loan Agreement. The Borrowing Base Agreement, in the
form as it is amended by this Third Modification, is deemed to be substituted as
the Exhibit "A" to the Loan Agreement.
13. Conditions Precedent. As conditions precedent to the effectiveness
of this Third Modification, on or before the date hereof:
a. Bank shall have received an executed counterpart of this
Third Modification duly executed by Borrower and each of the Guarantors;
b. All fees, expenses and payments due prior to the date
hereof under the Loan Documents shall have been paid in full by Borrower to
Bank;
c. Borrower shall have paid to Bank all out-of-pocket expenses
incurred by Bank in connection with or related to the negotiation, drafting and
execution of this Third Modification and the related documents or the
administration of the Loans, including without limitation (i) fees and expenses
for the preparation of any Loan Document, including, but not limited to this
Third Modification, (ii) appraisal fees, (iii) environmental inspection and
audit fees, and (iv) any applicable taxes and recording fees, which Bank
reasonably and in good faith estimates will be approximately $25,000;
d. Borrower shall have paid to Bank the $280,000 Extension
Fee; and
f. Bank shall have received (in a form reasonably acceptable
to Bank, executed by Allied, and enforceable by Bank as a third party
beneficiary) a written subordination of all indebtedness of Borrower to Allied
to all indebtedness of Borrower to Bank.
14. Additional Fees and Expenses. Within five business days of demand
therefor, Borrower shall pay all post-closing fees and expenses incurred by Bank
in connection with this Third Modification and the related documents, including
without limitation, reasonable fees and expenses of counsel, and any updated
appraisals of the Collateral, which Bank reasonably and in good faith estimates
will be approximately $20,000.
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15. Loan Document. This Third Modification and any documents executed
in connection herewith shall be deemed a Loan Document.
16. Representations and Warranties of Borrower and Guarantors. Each of
the Borrower and the Guarantors represents and warrants that: (a) it has the
requisite corporate power and authority to execute, deliver and perform this
Third Modification and any related documents; (b) it is duly authorized to, and
has been authorized by all necessary corporate action, to execute, deliver and
perform this Third Modification and any related documents; (c) the
representations and warranties contained in the Loan Documents are, subject to
the limitations set forth therein, true and correct in all material respects on
and as of the date hereof as though made on and as of such date (except for
those which expressly relate to an earlier date); (d) this Third Modification
does not violate any law, rule, regulation, contract or agreement otherwise
enforceable by or against it; and (e) other than the Acknowledged Events of
Default, no default or Event of Default exists under the Loan Documents on and
as of the date hereof.
17. Acknowledgment of Guarantors. Each of the Guarantors acknowledges
and consents to all of the terms and conditions of this Third Modification, and
each acknowledges, confirms and reaffirms its continuing obligations and
liability to Bank under each respective guaranty agreement. This Third
Modification and all documents executed in connection herewith do not operate to
reduce or discharge the Guarantors' obligations under its respective guaranty
agreement or any of the other Loan Documents.
18. Release. Each of Borrower and the Guarantors releases Bank and its
officers, employees, representatives, agents, and directors from any and all
actions, causes of action, claims, demands, damages and liabilities of whatever
kind or nature, in law or in equity, now known or unknown, suspected or
unsuspected.
19. Liens. Borrower and each of the Guarantors affirms the liens and
security interests created and granted in the Loan Documents. This Third
Modification shall in no manner adversely effect or impair such liens and
security interests.
20. No Other Changes. Except as expressly modified in this Third
Modification, the terms, provisions and conditions of the Loan Documents shall
remain unchanged and shall continue in full force and effect.
21. Counterparts. This Third Modification may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. Delivery of an executed counterpart of this Third Modification by
telecopy shall be effective as an original and shall constitute a representation
that an original shall be delivered to Bank.
22. Entirety. This Third Modification and the other Loan Documents
embody the entire agreement between the parties and supersede all prior
agreements and understandings, if any, relating to the subject matter hereof.
Such documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
of the parties.
12
13
23. Further Assurances. Bank and each of Borrower and the Guarantors
agrees to execute and deliver, or to cause to be executed and delivered, all
such instruments as either of them may reasonably request to effectuate the
intent and purposes, and to carry out the terms, of this Third Modification.
24. Governing Law. THIS THIRD MODIFICATION AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
25. Successors and Assigns. This Third Modification shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Notwithstanding the foregoing, Borrower and the
Guarantors may not assign their respective rights and obligations under this
Third Modification without the prior written consent of Bank. Bank may assign
its rights and obligations or any portion thereof under this Third Modification
without the prior consent of any other party hereto.
[SIGNATURES ON FOLLOWING PAGES]
14
This Agreement is executed as of the day and year first written above.
BLUE RHINO CORPORATION
ATTEST: By:/s/ Billy Prim
---------------------------------
Name:
/s/Mark Castaneda Title:
---------------------------
Secretary
(CORPORATE SEAL)
QUICKSHIP, INC.
ATTEST:
By:/s/ Billy Prim
---------------------------------
/s/ Mark Castaneda Name:
--------------------------- Title:
Secretary
(CORPORATE SEAL)
USA Leasing, LLC
By:/s/ Billy Prim (SEAL)
-------------------------
Name:
Title:
RHINO SERVICES, LLC
By:/s/ Billy Prim (SEAL)
-------------------------
Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
15
CPD ASSOCIATES, INC.
ATTEST:
By:/s/ Mark Castaneda
--------------------------------
/s/ Kurt Gehsmann Name:
---------------------------- Title:
Secretary
(CORPORATE SEAL)
UNIFLAME, INC.
ATTEST:
By:/s/ Kurt Gehsmann
--------------------------------
/s/ Mark Castaneda Name: Kurt Gehsmann
--------------------------- Title:
Secretary
(CORPORATE SEAL)
BANK OF AMERICA, N. A.
ATTEST:
By:/s/ David Colmie
--------------------------------
/s/ Marsha Voorhees Name: David Colmie
--------------------------- Title: Senior Vice President
Asst. Secretary
(BANK SEAL)