EXHIBIT 10.1(b)
CONFORMED COPY
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO THE CREDIT AGREEMENT dated as of February 25,
2003 (the "Amendment"), is entered into by and among BLUE RHINO CORPORATION, a
Delaware corporation (the "Borrower"), the Lenders referred to in the Credit
Agreement referred to below (the "Lenders") and BANK OF AMERICA, N.A., as
Administrative Agent for the Lenders (the "Administrative Agent").
Statement of Purpose
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to that certain Credit Agreement dated as of November 20, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), pursuant to which the Lenders have extended certain credit
facilities to the Borrower;
WHEREAS, the Borrower, the Administrative Agent and the Lenders have
entered into that certain Consent and Waiver to Credit Agreement dated as of
January 22, 2003 (the "Consent"), pursuant to which the parties agreed, among
other things, to (i) extend the deadline by which the Borrower must apply the
Net Cash Proceeds in the amount of $14,955,500 from the completed Additional
Equity Offering (such amount, the "Prepayment Amount") to repay the Senior
Subordinated Debt or the Term Loan to February 25, 2003, and (ii) reserve
$10,000,000 of availability under the Revolving Credit Commitment for the
repayment of the Senior Subordinated Debt or the Term Loan;
WHEREAS, the Borrower has requested that the Lenders and the
Administrative Agent agree to amend the Credit Agreement to, among other things,
(i) consent to the extension of the deadline by which the Borrower must apply
the Prepayment Amount to May 26, 2003, (ii) reduce the amount of the Revolving
Credit Commitment currently reserved for the repayment of the Senior
Subordinated Debt or the Term Loan to $5,000,000 and (iii) change the due dates
for delivery of the Borrowing Base Certificate; and
WHEREAS, the Lenders and the Administrative Agent are, on the terms and
conditions stated below, willing to grant the requests of the Borrower.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized, undefined terms used in this
Agreement shall have the meanings assigned thereto in the Credit Agreement.
SECTION 2. Amendments. Pursuant to Section 11.01 of the Credit
Agreement and subject to the satisfaction of the conditions specified in Section
5 below (but effective as of the date hereof), the Credit Agreement is hereby
amended as follows:
(a) Section 1.01 of the Credit Agreement (Defined Terms) is hereby
amended by deleting the definition of "Borrowing Base" in its entirety and
replacing it with the following:
"Borrowing Base" means, as of any date of determination and
subject to Section 1.08 and the following sentence, the sum of (a) 80%
of Eligible Accounts, (b) 50% of Eligible Inventory, (c) 50% of
Cylinder Inventory, (d) 50% of Eligible Equipment and (e) 40% of
Eligible In-Transit Inventory. Subject to any adjustments or
corrections described in Section 1.08, the Borrowing Base at any
relevant time will be based on the most recent Borrowing Base
Certificate received by Administrative Agent pursuant to Section
5.01(a) or Section 7.02(c); provided that, if the Borrower fails to
deliver any Borrowing Base Certificate pursuant to Section 7.02(c) (i)
on or before the date it is due, the Borrower may not obtain any Loan
or L/C Credit Extension until such Borrowing Base Certificate is
received by Administrative Agent, or (ii) within 15 days after the date
it is due, the Borrowing Base will thereafter be $0.00 until such
Borrowing Base Certificate is received by Administrative Agent.
(b) Section 1.01 of the Credit Agreement (Defined Terms) is hereby
further amended by inserting the following definition of "Eligible In-Transit
Inventory" in proper alphabetical order:
"Eligible In-Transit Inventory" means, subject to modification
by the Administrative Agent pursuant to Section 1.08, the net book
value of all Inventory (other than Eligible Inventory, Cylinder
Inventory and Valve Inventory) of any Loan Party currently in transit
to a Loan Party from a third party supplier thereof; provided that (a)
the full purchase price for such Inventory has been paid or is subject
to an irrevocable commercial Letter of Credit issued hereunder, (b)
such Inventory has been placed with a third party carrier and is
subject to a negotiable bill of lading all originals of which have been
indorsed to the Administrative Agent as consignee and are in the
possession of the Administrative Agent or its designated agent, (c) the
Administrative Agent has received all agency agreements and other
documentation reasonably requested thereby in connection with the
delivery of such Inventory and such negotiable bill of lading and (d)
the aggregate net book value of all such Inventory included for
purposes of calculating the Borrowing Base shall not exceed $10,000,000
(before application of any advance rate for such Eligible In-Transit
Inventory).
(c) Section 7.02 of the Credit Agreement (Certificates; Other
Information) is hereby amended by deleting clause (c) in its entirety and
replacing it with the following:
"(c) (i) on the 20th of each fiscal month (or if the 20th is
not a Business Day, on the next succeeding Business Day), a duly
completed Borrowing Base Certificate signed by a Responsible Officer of
the Borrower as of the end of the fiscal month most recently ended
prior to such date and (ii) on the 25th of each fiscal month (or if the
25th is not a Business Day, the next succeeding Business
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Day), a duly completed Borrowing Base Certificate signed by a
Responsible Officer of the Borrower as of the 15th of such fiscal
month;"
SECTION 3. Consents. Pursuant to Section 11.01 of the Credit Agreement
and subject to the satisfaction of the conditions specified in Section 5 below
(but effective as of the date hereof) the Borrower, the Administrative Agent and
the Lenders hereby consent to the following:
(a) Notwithstanding anything to the contrary contained in Section
2.06(e) of the Credit Agreement or in the Consent, $5,000,000 of availability
under the Revolving Credit Commitment (the "Reserve Amount") is hereby reserved
for the purpose of repaying the Senior Subordinated Debt and/or the Term Loan on
or before May 26, 2003. The Reserve Amount shall be a replacement of, and not in
addition to, the $10,000,000 reserve established pursuant to the Consent. The
Borrower may apply the Prepayment Amount to repay the Senior Subordinated Debt
and/or the Term Loan at such times and in such relative proportion as the
Borrower elects in its sole discretion; provided that (i) the full amount of the
Prepayment Amount shall be used to make such repayment by May 26, 2003 and (ii)
the Reserve Amount shall only be available to be drawn to fund the last
$5,000,000 of the Prepayment Amount. Section 2.06(e)(ii) of the Credit Agreement
shall be interpreted and construed consistent with this Section 3(a) as it
relates to the application of the Net Cash Proceeds of the Additional Equity
Offering. The Borrower agrees and acknowledges that failure to apply the full
Prepayment Amount to repay the Senior Subordinated Debt and/or the Term Loan, on
or before May 26, 2003 shall constitute an immediate Default and Event of
Default.
(b) The date upon which the Borrower shall have delivered to the
Administrative Agent a fully executed blocked account agreement, in form and
substance satisfactory to the Administrative Agent, for each deposit account of
any Loan Party held at Peoples Savings Bank (or otherwise complied with the
terms of Section 4.06 of the Collateral Agreement with respect to such deposit
accounts) is hereby extended to March 15, 2003.
SECTION 4. Waiver. Pursuant to Section 11.01 of the Credit Agreement
and subject to the satisfaction of the conditions specified in Section 5 below
(but effective as of the date hereof), the Administrative Agent and the Lenders
hereby waive any Default or Event of Default that may have occurred under
Section 5 of the Consent as a result of the Borrower's failure to deliver to the
Administrative Agent a fully executed blocked account agreement for each deposit
account held by any Loan Party at Peoples Savings Bank by February 15, 2003.
SECTION 5. Conditions of Effectiveness. This Amendment shall be
effective as of the date hereof if, and only if, the Administrative Agent shall
receive (a) counterparts of this Amendment executed by the Borrower, the
Required Lenders and the Administrative Agent, (b) an amendment fee from the
Borrower in an amount equal to $73,750, such fee to be distributed pro rata to
the Lenders signatory hereto, and (c) all additional fees separately agreed to
by the Borrower and the Administrative Agent.
SECTION 6. Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation,
execution, delivery and
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administration of this Amendment and the other instruments and documents to be
delivered hereunder (including, without limitation, all fees and expenses of
Kennedy Covington Lobdell & Hickman, L.L.P., as legal counsel to the
Administrative Agent).
SECTION 7. Limited Waiver and Amendment. The Credit Agreement and each
other Loan Document shall continue to be, and shall remain, in full force and
effect. Except as expressly provided in this Amendment, this Amendment shall not
be deemed or otherwise construed (i) to be a waiver of, or consent to or a
modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan Document; (ii) to prejudice any other right or
remedies that the Lenders may now have or may have in the future under or in
connection with the Credit Agreement or the Loan Documents, as such documents
may be amended, restated or otherwise modified from time to time; (iii) to be a
commitment or any other undertaking or expression of any willingness to engage
in any further discussion with the Borrower or any other person, firm or
corporation with respect to any waiver, amendment, modification or any other
change to the Credit Agreement or the Loan Documents or any rights or remedies
arising in favor of the Lenders under or with respect to any such documents; or
(iv) to be a waiver of, or consent to or a modification or amendment of, any
other term or condition of any other agreement by and among the Borrower and the
Lenders.
SECTION 8. Representations and Warranties. By its execution hereof, the
Borrower hereby certifies that each of the representations and warranties set
forth in the Credit Agreement and the other Loan Documents is true and correct
as of the date hereof (other than representations and warranties which speak as
of a specific date pursuant to the Credit Agreement, which representations and
warranties shall have been true and correct as of such specific dates) as if
fully set forth herein, and that as of the date hereof and after giving effect
to this Amendment, no Default or Event of Default has occurred and is
continuing.
SECTION 9. Integration. The Credit Agreement, as amended and modified
by this Amendment, comprises the complete and integrated agreement of the
parties on the subject matter hereof and thereof supersedes all prior written
and oral agreements on such subject matter.
SECTION 10. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement.
SECTION 11. Governing Law. This Amendment shall be governed by,
construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 12. Fax Transmission. A facsimile, telecopy or other
reproduction of this Amendment may be executed by one or more parties hereto,
and an executed copy of this Amendment may be delivered by one or more parties
hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all
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purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction hereof.
[Signature Pages Follow]
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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.
BLUE RHINO CORPORATION
By: /s/ Mark Castaneda
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Name: Mark Castaneda
Title: Executive Vice President and Chief
Financial Officer
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Dianne L. Douglas
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Name: Dianne L. Douglas
Title: Vice President
BANK OF AMERICA, N.A., as Lender, L/C
Issuer and Swing Line Lender
By: /s/ J. Thomas Johnson, Jr.
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Name: J. Thomas Johnson, Jr.
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Mark Evans
--------------------------------
Name: Mark Evans
Title: Senior Vice President
SUNTRUST BANK, as a Lender
By: /s/ C. Gray Key
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Name: C. Gray Key
Title: Director
RBC CENTURA BANK, as a Lender
By: /s/ Michael H. Trainor
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Name: Michael H. Trainor
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Amy B. Yore
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Name: Amy B. Yore
Title: Assistant Vice President