Notes to the Consolidated Financial
Statements
Note 1 - Summary of Significant Accounting
Policies
Business
Hudson Technologies, Inc., incorporated
under the laws of New York on January 11, 1991, is a refrigerant services company providing innovative solutions to recurring problems
within the refrigeration industry. The Company’s operations consist of one reportable segment. The Company's products and
services are primarily used in commercial air conditioning, industrial processing and refrigeration systems, and include refrigerant
and industrial gas sales, refrigerant management services consisting primarily of reclamation of refrigerants and RefrigerantSide®
Services performed at a customer's site, consisting of system decontamination to remove moisture, oils and other contaminants.
In addition, the Company’s SmartEnergy OPS® service is a web-based real time continuous monitoring service applicable
to a facility’s refrigeration systems and other energy systems. The Company’s Chiller Chemistry® and Chill Smart®
services are also predictive and diagnostic service offerings. As a component of the Company’s products and services, the
Company also generates carbon offset projects. The Company operates principally through its wholly-owned subsidiaries, Hudson Technologies
Company and Aspen Refrigerants, Inc. Unless the context requires otherwise, references to the “Company”, “Hudson”,
“we", “us”, “our”, or similar pronouns refer to Hudson Technologies, Inc. and its subsidiaries.
In preparing the accompanying consolidated
financial statements, and in accordance with Accounting Standards Codification (ASC) 855-10 “Subsequent Events”, the
Company’s management has evaluated subsequent events through the date that the financial statements were filed.
The accompanying unaudited consolidated
financial statements have been prepared in accordance with generally accepted accounting principles for interim financial statements
and with the instructions of Regulation S-X. Accordingly, they do not include all the information and footnotes required by generally
accepted accounting principles for complete financial statements. The financial information included in this quarterly report should
be read in conjunction with the Company’s audited financial statements and related notes thereto for the year ended December
31, 2018. Operating results for the nine month period ended September 30, 2019 are not necessarily indicative of the results that
may be expected for the year ending December 31, 2019.
In the opinion of management, all estimates
and adjustments considered necessary for a fair presentation have been included and all such adjustments were normal and recurring.
Consolidation
The consolidated financial statements represent
all companies of which Hudson directly or indirectly has majority ownership or otherwise controls. Significant intercompany accounts
and transactions have been eliminated. The Company's consolidated financial statements include the accounts of wholly-owned subsidiaries
Hudson Holdings, Inc., Hudson Technologies Company and Aspen Refrigerants, Inc. The Company does not present a statement of comprehensive
income (loss) as its comprehensive income (loss) is the same as its net income (loss).
Going Concern
The accompanying consolidated
financial statements have been prepared assuming the Company will continue as a going concern and contemplate the realization
of assets and satisfaction of liabilities in the normal course of business. The Company’s ability to continue as a
going concern is contingent upon its ability to comply with the financial covenants within its credit agreements, referred to
in Note 8. The Company’s level of indebtedness has adversely impacted, and continues to adversely impact, the
Company’s financial condition, including operating results and liquidity position. As of June 30, 2019 and September
30, 2019, the Company was not in compliance with the financial covenants in the Term Loan Facility and the PNC Facility, thus
raising substantial doubt as to the ability to continue as a going concern within one year after the date the financial statements were issued. The Company has satisfied all of its debt
payment obligations on a timely basis and had over $14 million of cash on hand and $23 million of availability pursuant to
the borrowing base formula in the PNC Facility as of September 30, 2019; and is working with its lenders to obtain a waiver
and amendment of its credit facilities. However, there can be no assurance that the Company will be able to conclude any such
waivers or amendments on acceptable terms or at all.
The accompanying consolidated financial
statements do not include any adjustments related to the recoverability and classification of assets or the amounts and classifications
of liabilities or any other adjustments that might be necessary should the Company be unable to continue as a going concern.
Fair Value of Financial Instruments
The carrying values of financial instruments
including trade accounts receivable and accounts payable approximate fair value at September 30, 2019 and December 31, 2018, because
of the relatively short maturity of these instruments. The carrying value of debt approximates fair value, due to the variable
rate nature of the debt, as of September 30, 2019 and December 31, 2018.
Credit Risk
Financial instruments, which potentially
subject the Company to concentrations of credit risk, consist principally of temporary cash investments and trade accounts receivable.
The Company maintains its temporary cash investments in highly-rated financial institutions and, at times, the balances exceed
FDIC insurance coverage. The Company’s trade accounts receivable are primarily due from companies throughout the United States.
The Company reviews each customer’s credit history before extending credit.
The Company establishes an allowance for
doubtful accounts based on factors associated with the credit risk of specific accounts, historical trends, and other information.
The carrying value of the Company’s accounts receivable is reduced by the established allowance for doubtful accounts. The
allowance for doubtful accounts includes any accounts receivable balances that are determined to be uncollectible, along with a
general reserve for the remaining accounts receivable balances. The Company adjusts its reserves based on factors that affect the
collectability of the accounts receivable balances.
For the nine month period ended September
30, 2019, there was one customer accounting for 13% of the Company’s revenues. At September 30, 2019 there were $3.3 million
of accounts receivable from this customer.
For the nine month period ended September
30, 2018, there were no customers that accounted for 10% or more of the Company’s revenues.
The loss of a principal customer or a decline
in the economic prospects of and/or a reduction in purchases of the Company’s products or services by any such customer could
have a material adverse effect on the Company’s operating results and financial position.
Cash and Cash Equivalents
Temporary investments with original maturities
of ninety days or less are included in cash and cash equivalents.
Inventories
Inventories, consisting primarily of refrigerant
products available for sale, are stated at the lower of cost, on a first-in first-out basis, or net realizable value. Where the
market price of inventory is less than the related cost, the Company may be required to write down its inventory through a lower
of cost or net realizable value adjustment, the impact of which would be reflected in cost of sales on the Consolidated Statements
of Operations. Any such adjustment would be based on management’s judgment regarding future demand and market conditions
and analysis of historical experience.
Property, Plant and Equipment
Property, plant and equipment are stated
at cost, including internally manufactured equipment. The cost to complete equipment that is under construction is not considered
to be material to the Company's financial position. Provision for depreciation is recorded (for financial reporting purposes) using
the straight-line method over the useful lives of the respective assets. Leasehold improvements are amortized on a straight-line
basis over the shorter of economic life or terms of the respective leases. Costs of maintenance and repairs are charged to expense
when incurred.
Due to the specialized nature of the Company's
business, it is possible that the Company's estimates of equipment useful life periods may change in the future.
Goodwill
The Company has made acquisitions that
included a significant amount of goodwill and other intangible assets. The Company applies the purchase method of accounting for
acquisitions, which among other things, requires the recognition of goodwill (which represents the excess of the purchase price
of the acquisition over the fair value of the net assets acquired and identified intangible assets). We test our goodwill for impairment
on an annual basis (the first day of the fourth quarter) and between annual tests if an event occurs or circumstances change that
would more likely than not reduce the fair value of an asset below its carrying value. Other intangible assets that meet certain
criteria are amortized over their estimated useful lives.
Beginning in 2017, the Company adopted,
on a prospective basis, ASU No. 2017-04, which simplifies the accounting for goodwill impairment by eliminating Step 2 of the prior
goodwill impairment test that required a hypothetical purchase price allocation to measure goodwill impairment. Under the new standard,
a company will record an impairment charge based on the excess of a reporting unit’s carrying amount over its fair value.
An impairment charge would
be recognized when the carrying amount exceeds the estimated fair value of a reporting unit. These impairment evaluations
use many assumptions and estimates in determining an impairment loss, including certain assumptions and estimates related
to future earnings. If the Company does not achieve its earnings objectives, the assumptions and estimates underlying
these impairment evaluations could be adversely affected, which could result in an asset impairment charge that would
negatively impact operating results. The Company’s performance has continued to be negatively impacted by the
challenging pricing environment affecting the industry and the market during 2019 resulting in an increase in net realizable
value adjustments for certain gases; however, the Company’s sales volume has increased in 2019 when compared to 2018.
The Company determined as of September 30, 2019, that the year-to-date decline in revenue and operating loss, along with
the decrease in the Company’s stock price during 2019 represented a triggering event which required a goodwill
impairment test. Based on these indicators, the Company quantitatively evaluated its goodwill for impairment as of September
30, 2019 and determined that goodwill was not impaired.
Revenues and Cost of Sales
Beginning on January 1, 2018, the Company
adopted, on a modified retrospective basis, Accounting Standards Codification (ASC) 606, Revenue from Contracts with Customers,
which provides accounting guidance related to the recognition of revenue from contracts with customers. Based on the evaluation
performed, the Company concluded that the adoption of this standard had no impact on its financial position, results of operations
or cash flows and did not have a significant impact on its internal controls over financial reporting.
The Company’s products and services
are primarily used in commercial air conditioning, industrial processing and refrigeration systems. Most of the Company’s
revenues are realized from the sale of refrigerant and industrial gases and related products. The Company also generates revenue
from refrigerant management services performed at a customer’s site and in-house. The Company conducts its business primarily
within the US.
The Company applies the FASB’s guidance
on revenue recognition, which requires the Company to recognize revenue in an amount that reflects the consideration the Company
expects to be entitled in exchange for goods or services transferred to its customers. In most instances, the Company’s contract
with a customer is the customer’s purchase order and the sales price to the customer is fixed. For certain customers, the
Company may also enter into a sales agreement outlining a framework of terms and conditions applicable to future purchase orders
received from that customer. Because the Company’s contracts with customers are typically for a single customer purchase
order, the duration of the contract is usually less than one year. The Company’s performance obligations related to product
sales are satisfied at a point in time, which may occur upon shipment of the product or receipt by the customer, depending on the
terms of the arrangement. The Company’s performance obligations related to reclamation and RefrigerantSide® services
are generally satisfied at a point in time when the service is performed. Accordingly revenues are recorded upon the shipment of
the product, or in certain instances upon receipt by the customer, or the completion of the service.
In July 2016 the Company was awarded, as
prime contractor, a five-year contract, including a five-year renewal option, by the United States Defense Logistics Agency (“DLA”)
for the management, supply, and sale of refrigerants, compressed gases, cylinders and related services. Due to the contract containing
multiple performance obligations, the Company assessed the arrangement in accordance with ASC 606. The Company determined that
the sale of refrigerants and the management services provided under the contract each have stand-alone value. Accordingly, the
performance obligations related to the sale of refrigerants is satisfied at a point in time, mainly when the customer receives
and obtains control of the product. The performance obligation related to management service revenue is satisfied over time and
revenue is recognized on a straight-line basis over the term of the arrangement as the management services are provided; such management
fees are included in the below table as Product and related sales and were approximately $1.8 million for each of the nine months
ended September 30, 2019 and 2018.
Cost of sales is recorded based on the
cost of products shipped or services performed and related direct operating costs of the Company’s facilities. In general,
the Company performs shipping and handling services for its customers in connection with the delivery of refrigerant and other
products. In accordance with ASC 606-10-25-18B, the Company has elected to account for such shipping and handling as activities
to fulfill the promise to transfer the good. To the extent that the Company charges its customers shipping fees, such amounts are
included as a component of revenue and the corresponding costs are included as a component of cost of sales.
The Company’s revenues are derived from Product and related
sales and RefrigerantSide® services revenues. The revenues for each of these lines are as follows:
|
|
Three Months
ended September 30,
|
|
|
Nine Months
ended September 30,
|
|
|
|
2019
|
|
|
2018
|
|
|
2019
|
|
|
2018
|
|
(in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
Product and related sales
|
|
$
|
44,518
|
|
|
$
|
39,787
|
|
|
$
|
132,705
|
|
|
$
|
137,336
|
|
RefrigerantSide® services
|
|
|
1,113
|
|
|
|
758
|
|
|
|
3,601
|
|
|
|
3,468
|
|
Total
|
|
$
|
45,631
|
|
|
$
|
40,545
|
|
|
$
|
136,306
|
|
|
$
|
140,804
|
|
Income Taxes
The Company is taxed at statutory corporate
income tax rates after adjusting income reported for financial statement purposes for certain items. Current income tax expense
(benefit) reflects the tax results of revenues and expenses currently taxable or deductible. The Company utilizes the asset and
liability method of accounting for deferred income taxes, which provides for the recognition of deferred tax assets or liabilities,
based on enacted tax rates and laws, for the differences between the financial and income tax reporting bases of assets and liabilities.
The tax benefit associated with the Company’s
net operating loss carry forwards (“NOLs”) is recognized to the extent that the Company expects to realize future taxable
income. As a result of a prior “change in control”, as defined by the Internal Revenue Service, the Company’s
ability to utilize its existing NOLs is subject to certain annual limitations. To the extent that the Company utilizes its NOLs,
it will not pay tax on such income. However, to the extent that the Company’s net income, if any, exceeds the annual NOL
limitation, it will pay income taxes based on the then existing statutory rates. In addition, certain states either do not allow
or limit NOLs and as such the Company will be liable for certain state income taxes.
As of September 30, 2019, the Company had
NOLs of approximately $39.1 million, of which $33.7 million have no expiration date (subject to annual limitations of 80% of tax
earnings) and $5.4 million expire through 2023 (subject to annual limitations of approximately $1.3 million). As of September 30,
2019, the Company had state tax NOLs of approximately $20.0 million expiring in various years. We review the likelihood that we
will realize the benefit of our deferred tax assets, and therefore the need for valuation allowances, on an annual basis in the
fourth quarter of the year, and more frequently if events indicate that a review is required. In determining the requirement for
a valuation allowance, the historical and projected financial results are considered, along with all other available positive and
negative evidence.
Concluding that a valuation allowance is
not required is difficult when there is significant negative evidence that is objective and verifiable, such as cumulative losses
in recent years. We utilize a rolling twelve quarters of pre-tax income or loss adjusted for significant permanent book to tax
differences, as well as non-recurring items, as a measure of our cumulative results in recent years. Based on the cumulative operating
loss experienced through December 31, 2018, our analysis indicated that we had cumulative three year historical losses on this
basis, which represented significant negative evidence that is objective and verifiable and, therefore, difficult to overcome.
Based on our assessment as of December 31, 2018, we concluded that due to the uncertainty that the deferred tax assets will not
be fully realized in the future, we recorded a valuation allowance of approximately $11.3 million during the year ended December
31, 2018 and increased the valuation allowance to $16.9 million as of September 30, 2019 due to additional losses.
As a result of an Internal Revenue Service
audit, the 2013 and prior federal tax years have been closed. The Company operates in many states throughout the United States
and, as of September 30, 2019, the various states’ statutes of limitations remain open for tax years subsequent to 2010.
The Company recognizes interest and penalties, if any, relating to income taxes as a component of the provision for income taxes.
The Company evaluates uncertain tax positions,
if any, by determining if it is more likely than not to be sustained upon examination by the taxing authorities. As of September
30, 2019, and December 31, 2018, the Company believes it had no uncertain tax positions.
Income (Loss) per Common and Equivalent
Shares
If dilutive, common equivalent shares (common
shares assuming exercise of options) utilizing the treasury stock method are considered in the presentation of diluted loss per
share. The reconciliation of shares used to determine net income (loss) per share is as follows (dollars in thousands, unaudited):
|
|
Three Months
ended September 30,
|
|
|
Nine Months
ended September 30,
|
|
|
|
2019
|
|
|
2018
|
|
|
2019
|
|
|
2018
|
|
Net income (loss)
|
|
$
|
2,667
|
|
|
$
|
(13,880
|
)
|
|
$
|
(15,169
|
)
|
|
$
|
(47,552
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of shares – basic and diluted
|
|
|
42,618,391
|
|
|
|
42,530,476
|
|
|
|
42,608,396
|
|
|
|
42,445,926
|
|
During the three month periods ended September
30, 2019 and 2018, certain options aggregating 4,807,377 and 785,697 shares, respectively, have been excluded from the calculation
of diluted shares, due to the fact that their effect would be anti-dilutive.
During the nine month periods ended September
30, 2019 and 2018, certain options aggregating 4,807,377 and 785,697 shares, respectively, have been excluded from the calculation
of diluted shares, due to the fact that their effect would be anti-dilutive.
Estimates and Risks
The preparation of financial statements
in conformity with generally accepted accounting principles in the United States requires the use of estimates and assumptions
that affect the amounts reported in these financial statements and footnotes. The Company considers these accounting estimates
to be critical in the preparation of the accompanying consolidated financial statements. The Company uses information available
at the time the estimates are made. However, these estimates could change materially if different information or assumptions were
used. Additionally, these estimates may not ultimately reflect the actual amounts of the final transactions that occur. The Company
utilizes both internal and external sources to evaluate potential current and future liabilities for various commitments and contingencies.
In the event that the assumptions or conditions change in the future, the estimates could differ from the original estimates.
Several of the Company's accounting policies
involve significant judgments, uncertainties and estimates. The Company bases its estimates on historical experience and on various
other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments
about the carrying values of assets and liabilities. Actual results may differ from these estimates under different assumptions
or conditions. To the extent that actual results differ from management's judgments and estimates, there could be a material adverse
effect on the Company. On a continuous basis, the Company evaluates its estimates, including, but not limited to, those estimates
related to its allowance for doubtful accounts, inventory reserves, and valuation allowance for the deferred tax assets relating
to its NOLs and commitments and contingencies. With respect to accounts receivable, the Company estimates the necessary allowance
for doubtful accounts based on both historical and anticipated trends of payment history and the ability of the customer to fulfill
its obligations. For inventory, the Company evaluates both current and anticipated sales prices of its products to determine if
a write down of inventory to net realizable value is necessary. In determining the Company’s valuation allowance for its
deferred tax assets, the Company assesses its ability to generate taxable income in the future.
The Company participates in an industry
that is highly regulated, and changes in the regulations affecting our business could affect our operating results. Currently the
Company purchases virgin hydrochlorofluorocarbon (“HCFC”) and hydrofluorocarbon (“HFC”) refrigerants and
reclaimable, primarily HCFC, HFC and chlorofluorocarbon (“CFC”), refrigerants from suppliers and its customers. Effective
January 1, 1996, the Clean Air Act (the “Act”) prohibited the production of virgin CFC refrigerants and limited the
production of virgin HCFC refrigerants. Effective January 2004, the Act further limited the production of virgin HCFC refrigerants
and federal regulations were enacted which established production and consumption allowances for HCFC refrigerants which imposed
limitations on the importation of certain virgin HCFC refrigerants. Under the Act, production of certain virgin HCFC refrigerants
is scheduled to be phased out during the period 2010 through 2020, and production of all virgin HCFC refrigerants is scheduled
to be phased out by 2030. In October 2014, the EPA published a final rule providing further reductions in the production and consumption
allowances for virgin HCFC refrigerants for the years 2015 through 2019 (the “Final Rule”). In the Final Rule, the
EPA established a linear draw down for the production or importation of virgin HCFC-22 that started at approximately 22 million
pounds in 2015 and was reduced by approximately 4.5 million pounds each year ending at zero in 2020.
To the extent that the Company is unable
to source sufficient quantities of refrigerants or is unable to obtain refrigerants on commercially reasonable terms or experiences
a decline in demand and/or price for refrigerants sold by the Company, the Company could realize reductions in revenue from refrigerant
sales, which could have a material adverse effect on its operating results and its financial position.
The Company is subject to various legal
proceedings. The Company assesses the merit and potential liability associated with each of these proceedings. In addition, the
Company estimates potential liability, if any, related to these matters. To the extent that these estimates are not accurate, or
circumstances change in the future, the Company could realize liabilities, which could have a material adverse effect on its operating
results and its financial position.
Impairment of Long-lived Assets
The Company reviews long-lived assets for
impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability
of assets to be held and used is measured by a comparison of the carrying amount of the assets to the future net cash flows expected
to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the
amount by which the carrying amount of the assets exceeds the fair value of the assets. Assets to be disposed of are reported at
the lower of the carrying amount or fair value less the cost to sell.
Recent Accounting Pronouncements
In June 2016, the FASB issued ASU No. 2016-13,
"Financial Instruments - Credit Losses." This ASU requires an organization to measure all expected credit losses for
financial assets held at the reporting date based on historical experience, current conditions, and reasonable and supportable
forecasts. Financial institutions and other organizations will now use forward-looking information to better inform their credit
loss estimates. The amendments in this ASU are effective for fiscal years beginning after December 15, 2019, and for interim periods
therein. The Company does not expect the amended standard to have a material impact on the Company’s results of operations.
In February 2016, the FASB issued Accounting
Standards Update No. 2016-02, Leases (Topic 842) (ASU 2016-02), as amended, which generally requires lessees to recognize
operating and financing lease liabilities and corresponding right-of-use assets on the balance sheet and to provide enhanced disclosures
surrounding the amount, timing and uncertainty of cash flows arising from leasing arrangements. In July 2018, the FASB issued ASU
No. 2018-11, Leases – Targeted Improvements, as an update to the previously-issued guidance. This update added a transition
option which allows for the recognition of a cumulative effect adjustment to the opening balance of retained earnings in the period
of adoption without recasting the financial statements in periods prior to adoption. We have used the modified retrospective transition
approach in ASU No. 2018-11 and applied the new lease requirements through a cumulative-effect adjustment in the period of adoption.
We elected the package of practical expedients permitted under the transition guidance, which allows us to carryforward our historical
lease classification, our assessment on whether a contract is or contains a lease, and our initial direct costs for any leases
that existed prior to adoption of the new standard. We also elected to combine lease and non-lease components and to keep leases
with an initial term of 12 months or less off the balance sheet and recognize the associated lease payments in the consolidated
statements of operations on a straight-line basis over the lease term. We recorded approximately $8.1 million as total
right-of-use assets and total lease liabilities on our consolidated balance sheet as of January 1, 2019. The Company’s accounting
for finance leases remained substantially unchanged. Disclosures relating to the amount, timing and uncertainty of cash flows arising
from leases are included in Note 5.
Note 2 - Fair Value
ASC Subtopic 820-10 defines fair value
as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants
at the measurement date. The Company often utilizes certain assumptions that market participants would use in pricing the asset
or liability, including assumptions about risk and/or the risks inherent in the inputs to the valuation technique. These inputs
can be readily observable, market-corroborated, or generally unobservable inputs. The Company utilizes valuation techniques that
maximize the use of observable inputs and minimize the use of unobservable inputs. Based upon observable inputs used in the valuation
techniques, the Company is required to provide information according to the fair value hierarchy.
The fair value hierarchy ranks the quality
and reliability of the information used to determine fair values into three broad levels as follows:
Level 1: Valuations for assets and liabilities
traded in active markets from readily available pricing sources for market transactions involving identical assets or liabilities.
Level 2: Valuations for assets and liabilities
traded in less active dealer or broker markets. Valuations are obtained from third-party pricing services for identical
or similar assets or liabilities.
Level 3: Valuations for assets and liabilities
include certain unobservable inputs in the assumptions and projections used in determining the fair value assigned to such assets
or liabilities.
In instances where the determination of
the fair value measurement is based on inputs from different levels of the fair value hierarchy, the level in the fair value hierarchy
within which the entire fair value measurement falls is based on the lowest level input that is significant to the fair value measurement
in its entirety. The Company’s assessment of the significance of a particular input to the fair value measurement in its
entirety requires judgment and considers factors specific to the asset or liability.
Note 3 - Inventories
Inventories consist of the following:
|
|
September 30,
2019
|
|
|
December 31,
2018
|
|
(in thousands)
|
|
|
|
|
|
|
Refrigerant and cylinders
|
|
$
|
73,634
|
|
|
$
|
115,348
|
|
Less: net realizable value adjustments
|
|
|
(14,282
|
)
|
|
|
(13,386
|
)
|
Total
|
|
$
|
59,352
|
|
|
$
|
101,962
|
|
Note 4 - Property, plant and equipment
Elements of property, plant and equipment
are as follows:
|
|
September 30,
2019
|
|
|
December 31,
2018
|
|
|
Estimated
Lives
|
(in thousands)
|
|
|
|
|
|
|
|
|
Property, plant and equipment
|
|
|
|
|
|
|
|
|
|
|
- Land
|
|
$
|
1,255
|
|
|
$
|
1,255
|
|
|
|
- Land improvements
|
|
|
319
|
|
|
|
319
|
|
|
6-10 years
|
- Buildings
|
|
|
1,446
|
|
|
|
1,446
|
|
|
25-39 years
|
- Building improvements
|
|
|
3,045
|
|
|
|
3,045
|
|
|
25-39 years
|
- Cylinders
|
|
|
13,262
|
|
|
|
13,369
|
|
|
15-30 years
|
- Equipment
|
|
|
24,802
|
|
|
|
24,078
|
|
|
3-10 years
|
- Equipment under capital lease
|
|
|
315
|
|
|
|
315
|
|
|
5-7 years
|
- Vehicles
|
|
|
1,574
|
|
|
|
1,535
|
|
|
3-5 years
|
- Lab and computer equipment, software
|
|
|
3,090
|
|
|
|
3,090
|
|
|
2-8 years
|
- Furniture & fixtures
|
|
|
684
|
|
|
|
684
|
|
|
5-10 years
|
- Leasehold improvements
|
|
|
876
|
|
|
|
873
|
|
|
3-5 years
|
- Equipment under construction
|
|
|
156
|
|
|
|
464
|
|
|
|
Subtotal
|
|
|
50,824
|
|
|
|
50,473
|
|
|
|
Accumulated depreciation
|
|
|
26,281
|
|
|
|
23,078
|
|
|
|
Total
|
|
$
|
24,543
|
|
|
$
|
27,395
|
|
|
|
Depreciation expense for the nine months ended September 30,
2019 and 2018 was $3.2 million and $3.1 million, respectively.
Note 5- Leases
The Company has various lease agreements
with terms up to 11 years, including leases of buildings and various equipment. Some leases include options to purchase,
terminate or extend for one or more years. These options are included in the lease term when it is reasonably certain that the
option will be exercised.
At inception, the Company determines if
an arrangement contains a lease and whether that lease meets the classification criteria of a finance or operating lease. Some
of the Company’s lease arrangements contain lease components (e.g. minimum rent payments) and non-lease components (e.g.
common area maintenance, charges, utilities and property taxes). The Company elected the package of practical expedients permitted
under the transition guidance, which allows us to carry forward our historical lease classification, our assessment on whether
a contract contains a lease, and our initial direct costs for any leases that existed prior to the adoption of the new standard.
We also elected to combine lease and non-lease components and to keep leases with an initial term of 12 months or less off the
balance sheet and recognize the associated lease payments in the consolidated statements of operations on a straight line basis
over the lease term. The Company’s lease agreements do not contain any material residual value, guarantees or material restrictive
covenants.
Operating leases are included in Right
of use asset, Accrued expenses and other current liabilities, and Long-term lease liabilities on the consolidated balance sheets.
These assets and liabilities are recognized at the commencement date based on the present value of remaining lease payments over
the lease term using the Company’s secured incremental borrowing rates or implicit rates, when readily determinable. Short-term
operating leases, which have an initial term of 12 months or less, are not recorded on the balance sheet. Lease expense for operating
leases is recognized on a straight-line basis over the lease term. Variable lease expense is recognized in the period in which
the obligation for those payments is incurred. The Company has four leases with renewal options and they are not reasonably
certain to be exercised.
Lease expense is included in selling, general
and administrative expenses on the consolidated statements of operations and is reported net of lease income. Lease income is not
material to the results of operations for the quarter and nine months ended September 30, 2019.
The following table presents information
about the amount, timing and uncertainty of cash flows arising from the Company’s operating leases as of September 30, 2019.
Maturity of Lease Payments
|
|
September 30, 2019
|
|
(in thousands)
|
|
|
|
-2019 (remaining)
|
|
$
|
1,127
|
|
-2020
|
|
|
2,039
|
|
-2021
|
|
|
1,590
|
|
-2022
|
|
|
701
|
|
-2023
|
|
|
520
|
|
-Thereafter
|
|
|
3,422
|
|
Total undiscounted operating lease payments
|
|
|
9,399
|
|
Less imputed interest
|
|
|
(2,870
|
)
|
Present value of operating lease liabilities
|
|
$
|
6,529
|
|
Balance Sheet Classification
Current lease liabilities (recorded in Accrued expenses and other current liabilities)
|
|
$
|
2,069
|
|
Long-term lease liabilities
|
|
|
4,460
|
|
Total operating lease liabilities
|
|
$
|
6,529
|
|
Other Information
Weighted-average remaining term for operating leases
|
|
|
6.19 years
|
|
Weighted-average discount rate for operating leases
|
|
|
8.80
|
%
|
Cash Flows
An initial right-of-use asset of $8.1 million was
recognized as a non-cash asset addition with the adoption of the new lease accounting standard. Cash paid for amounts included
in the present value of operating lease liabilities was $2.3 million during the nine months ended September 30,
2019 and is included in operating cash flows.
Operating Lease Costs
Operating lease costs were $2.3 million for both
the nine-month periods ended September 30, 2019 and 2018.
As of December 31, 2018, future commitments
under operating leases, in accordance with legacy lease accounting standards, are summarized as follows:
Years ended December 31,
|
|
Amount
|
|
(in thousands)
|
|
|
|
-2019
|
|
$
|
2,952
|
|
-2020
|
|
|
2,055
|
|
-2021
|
|
|
1,619
|
|
-2022
|
|
|
684
|
|
-2023
|
|
|
498
|
|
Thereafter
|
|
|
3,422
|
|
Total
|
|
$
|
11,230
|
|
Note 6 - Goodwill and intangible assets
Goodwill represents the excess of the purchase
price over the fair value of the net assets acquired in business combinations accounted for under the purchase method of accounting.
In 2019, due to a significant selling price correction leading to unfavorable market conditions, the Company performed a quantitative
test by weighting the results of an income-based valuation technique, the discounted cash flows method, and a market-based valuation
technique to determine its reporting units’ fair values.
Based on the results of the impairment
assessments of goodwill and other intangible assets performed in 2018, the Company concluded that it is more likely than not that
the fair value of its goodwill exceeds the carrying value and that there are no impairment indicators related to intangible assets.
An impairment charge would be
recognized when the carrying amount exceeds the estimated fair value of a reporting unit. These impairment evaluations use
many assumptions and estimates in determining an impairment loss, including certain assumptions and estimates related to
future earnings. If the Company does not achieve its earnings objectives, the assumptions and estimates underlying these
impairment evaluations could be adversely affected, which could result in an asset impairment charge that would negatively
impact operating results. The Company’s performance has continued to be negatively impacted by the challenging pricing
environment affecting the industry and the market during 2019 resulting in an increase in inventory reserves for certain
gases; however, the Company’s sales volume has increased in 2019 when compared to 2018. The Company determined as of
September 30, 2019, that the year-to-date decline in revenue and operating loss, along with the decrease in the
Company’s stock price during 2019 represented a triggering event which required a goodwill impairment test.
Based on these indicators, the Company quantitatively evaluated its goodwill for impairment as of September 30, 2019 and
determined that goodwill was not impaired.
At September 30, 2019 the Company had $47.8
million of goodwill, of which $47.0 million is attributable to the acquisition of Aspen Refrigerants, Inc. on October 10, 2017.
The Company’s other intangible assets consist of the following:
|
|
|
|
|
September 30, 2019
|
|
|
December 31, 2018
|
|
|
|
Amortization
|
|
|
Gross
|
|
|
|
|
|
|
|
|
Gross
|
|
|
|
|
|
|
|
|
|
Period
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
|
|
(in thousands)
|
|
(in years)
|
|
|
Amount
|
|
|
Amortization
|
|
|
Net
|
|
|
Amount
|
|
|
Amortization
|
|
|
Net
|
|
Intangible assets with determinable lives
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Patents
|
|
|
5
|
|
|
$
|
386
|
|
|
$
|
383
|
|
|
$
|
3
|
|
|
$
|
386
|
|
|
$
|
380
|
|
|
$
|
6
|
|
Covenant not to compete
|
|
|
6 - 10
|
|
|
|
1,270
|
|
|
|
744
|
|
|
|
526
|
|
|
|
1,270
|
|
|
|
629
|
|
|
|
641
|
|
Customer relationships
|
|
|
10 - 12
|
|
|
|
31,560
|
|
|
|
5,840
|
|
|
|
25,720
|
|
|
|
31,660
|
|
|
|
3,952
|
|
|
|
27,708
|
|
Above market leases
|
|
|
13
|
|
|
|
567
|
|
|
|
88
|
|
|
|
479
|
|
|
|
567
|
|
|
|
54
|
|
|
|
513
|
|
Licenses
|
|
|
10
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
1,000
|
|
|
|
417
|
|
|
|
583
|
|
Totals identifiable intangible assets
|
|
|
|
|
|
$
|
33,783
|
|
|
$
|
7,055
|
|
|
$
|
26,728
|
|
|
$
|
34,883
|
|
|
$
|
5,432
|
|
|
$
|
29,451
|
|
Amortization expense for the
nine months ended September 30, 2019 and 2018 was $2.2 million for both periods. Intangible assets are reviewed for
impairment whenever events or changes in circumstances indicate that the carrying amount of an asset or asset group may not
be recoverable. During the third quarter of 2019, the Company recorded approximately $0.5 million of impairment
charges associated with the shutdown of its Nashville and Puerto Rico facilities. No other impairment charges were recognized
for the nine month period ended September 30, 2019 and for the year ended December 31, 2018.
Note 7 - Share-based compensation
Share-based compensation represents the
cost related to share-based awards, typically stock options or stock grants, granted to employees, non-employees, officers and
directors. Share-based compensation is measured at grant date, based on the estimated aggregate fair value of the award on the
grant date, and such amount is charged to compensation expense on a straight-line basis (net of estimated forfeitures) over the
requisite service period. For the nine month periods ended September 30, 2019 and 2018, share-based compensation expense of $0.9
million and $0.6 million, respectively, are reflected in general and administrative expenses in the consolidated Statements of
Operations.
Share-based awards have historically been
made as stock options, and recently also as stock grants, issued pursuant to the terms of the Company’s stock option and
stock incentive plans, (collectively, the “Plans”), described below. The Plans may be administered by the Board of
Directors or the Compensation Committee of the Board or by another committee appointed by the Board from among its members as provided
in the Plans. Presently, the Plans are administered by the Company’s Compensation Committee of the Board of Directors. As
of September 30, 2019, the Plans authorized the issuance of 7,000,000 shares of the Company’s common stock and, as of September
30, 2019 there were 2,717,400 shares of the Company’s common stock available for issuance for future stock option grants
or other stock-based awards.
Stock option awards, which allow the recipient
to purchase shares of the Company’s common stock at a fixed price, are typically granted at an exercise price equal to the
Company’s stock price at the date of grant. Typically, the Company’s stock option awards have vested from immediately
to two years from the grant date and have had a contractual term ranging from three to ten years.
Effective September 17, 2014, the
Company adopted its 2014 Stock Incentive Plan (“2014 Plan”) pursuant to which 3,000,000 shares of common stock
were reserved for issuance (i) upon the exercise of options, designated as either incentive stock options
(“ISOs”) under the Internal Revenue Code of 1986, as amended (the “Code”) or nonqualified options, or (ii) as
stock, deferred stock or other stock-based awards. ISOs may be granted under the 2014 Plan to employees and officers of the
Company. Non-qualified options, stock, deferred stock or other stock-based awards may be granted to consultants, directors
(whether or not they are employees), employees or officers of the Company. Stock appreciation rights may also be issued in
tandem with stock options. Unless the 2014 Plan is sooner terminated, the ability to grant options or other awards under the
2014 Plan will expire on September 17, 2024.
ISOs granted under the 2014 Plan may not
be granted at a price less than the fair market value of the common stock on the date of grant (or 110% of fair market value in
the case of persons holding 10% or more of the voting stock of the Company). Nonqualified options granted under the 2014 Plan may
not be granted at a price less than the fair market value of the common stock. Options granted under the 2014 Plan expire not more
than ten years from the date of grant (five years in the case of ISOs granted to persons holding 10% or more of the voting stock
of the Company). Certain options granted may contain a barrier price whereby the options are cancelled once the stock price declines
below a predetermined barrier price for five consecutive trading days.
Effective June 7, 2018, the Company adopted
its 2018 Stock Incentive Plan (“2018 Plan”) pursuant to which 4,000,000 shares of common stock were reserved for issuance
(i) upon the exercise of options, designated as either ISOs under the Code or nonqualified options, or (ii) as stock, deferred
stock or other stock-based awards. ISOs may be granted under the 2018 Plan to employees and officers of the Company. Non-qualified
options, stock, deferred stock or other stock-based awards may be granted to consultants, directors (whether or not they are employees),
employees or officers of the Company. Stock appreciation rights may also be issued in tandem with stock options. Unless the 2018
Plan is sooner terminated, the ability to grant options or other awards under the 2018 Plan will expire on June 7, 2028.
ISOs granted under the 2018 Plan may not
be granted at a price less than the fair market value of the common stock on the date of grant (or 110% of fair market value in
the case of persons holding 10% or more of the voting stock of the Company). Nonqualified options granted under the 2018 Plan may
not be granted at a price less than the fair market value of the common stock. Options granted under the 2018 Plan expire not more
than ten years from the date of grant (five years in the case of ISOs granted to persons holding 10% or more of the voting stock
of the Company). Certain options granted may contain a barrier price whereby the options are cancelled once the stock price declines
below a predetermined barrier price for five consecutive trading days.
All stock options have been granted to
employees and non-employees at exercise prices equal to or in excess of the market value of the underlying common stock on the
date of the grant.
The Company determines the fair value of
share-based awards at the grant date by using the Black-Scholes option-pricing model, and is incorporating the simplified method
to compute expected lives of share-based awards. There were options to purchase 524,800 and 307,355 shares of common stock granted
during the nine month periods ended September 30, 2019 and 2018, respectively.
A summary of the activity for stock options
issued under the Company’s Plans for the indicated periods is presented below:
Stock Option Totals
|
|
Shares
|
|
|
Weighted
Average
Exercise
Price
|
|
Outstanding at December 31, 2017
|
|
|
3,069,440
|
|
|
$
|
4.28
|
|
-Exercised
|
|
|
(5,000
|
)
|
|
$
|
3.43
|
|
-Granted
|
|
|
3,874,200
|
|
|
$
|
1.19
|
|
-Cancelled
|
|
|
(2,523,243
|
)
|
|
$
|
4.92
|
|
Outstanding at December 31, 2018
|
|
|
4,415,397
|
|
|
$
|
1.20
|
|
-Exercised
|
|
|
(10,000
|
)
|
|
$
|
0.89
|
|
-Granted
|
|
|
524,800
|
|
|
$
|
0.98
|
|
-Cancelled
|
|
|
(122,820
|
)
|
|
$
|
1.17
|
|
Outstanding at September 30, 2019
|
|
|
4,807,377
|
|
|
$
|
1.18
|
|
The following is the weighted average contractual
life in years and the weighted average exercise price at September 30, 2019 of:
|
|
|
|
|
Weighted
Average
Remaining
|
|
Weighted
Average
|
|
|
|
Number of
Options
|
|
|
Contractual
Life
|
|
Exercise
Price
|
|
Options outstanding and vested
|
|
|
4,312,387
|
|
|
2.04 years
|
|
$
|
1.19
|
|
The intrinsic value of options outstanding
at September 30, 2019 and December 31, 2018 were $21,600 and $0, respectively.
The intrinsic value of options unvested
at September 30, 2019 and December 31, 2018 were $0 and $0, respectively.
The intrinsic value of options exercised
during the nine months ended September 30, 2019 and 2018 were $11,100 and $0, respectively.
Note 8 - Short-term and long-term debt
Elements of short-term and long-term debt
are as follows:
|
|
September 30,
2019
|
|
|
December 31,
2018
|
|
(in thousands)
|
|
|
|
|
|
|
Short-term & long-term debt
|
|
|
|
|
|
|
|
|
Short-term debt:
|
|
|
|
|
|
|
|
|
- Revolving credit line and other debt
|
|
$
|
15,183
|
|
|
$
|
29,000
|
|
- Long-term debt, current
|
|
|
102,126
|
|
|
|
2,672
|
|
- Less: deferred financing costs on term loan
|
|
|
(2,804
|
)
|
|
|
—
|
|
Subtotal
|
|
|
114,505
|
|
|
|
31,672
|
|
Long-term debt:
|
|
|
|
|
|
|
|
|
- Long-term debt, noncurrent
|
|
|
—
|
|
|
|
101,588
|
|
- Less: deferred financing costs on term loan
|
|
|
—
|
|
|
|
(3,325
|
)
|
- Vehicle and equipment loans
|
|
|
—
|
|
|
|
4
|
|
- Capital lease obligations
|
|
|
5
|
|
|
|
6
|
|
Subtotal
|
|
|
5
|
|
|
|
98,273
|
|
|
|
|
|
|
|
|
|
|
Total short-term & long-term debt
|
|
$
|
114,510
|
|
|
$
|
129,945
|
|
As described in note 1, there is uncertainty
around the Company’s ability to comply with current and future financial covenants. Therefore, in accordance with ASC 470,
the Company has reclassified its term loan debt as a current liability as of September 30, 2019.
The Company was not in compliance with
the Total Leverage Ratio and the minimum liquidity covenants, calculated as of June 30, 2019 and September 30, 2019, set forth
in its Term Loan Facility. At September 30, 2019, the Company’s Total Leverage Ratio was 13.79:1.00 (versus a required Total
Leverage Ratio of 6.40:1.00) and the Company’s Liquidity (as defined in the Term Loan Facility) was $23.2 million (versus
a required level of $28 million). The Company was also not in compliance with the minimum EBITDA covenant for the four quarters
ended June 30, 2019 set forth in the PNC Facility and the Fixed Charge Coverage Ratio (0.40 versus 1.00) covenant for the four
quarters ended September 30, 2019 set forth in the PNC Facility.
Each of the foregoing represent an Event
of Default, as defined in the respective loan agreements. The occurrence of an Event of Default under both the Term Loan Facility
and the PNC Facility provide the respective lenders with the right to declare all amounts under the respective agreements to be
immediately due and payable and the respective lenders have the right to terminate the obligation to make loans thereunder, and
furthermore allows the respective lenders to exercise any and all other remedies under the applicable agreements. The lenders under
both the Term Loan Facility and the PNC Facility have delivered reservation of rights letters and the Company has been making interest
payments on the PNC Facility at the default rate of interest. The Company is currently seeking a waiver and amendment from its
lenders to waive prior defaults and reset the financial covenants under both the Term Loan Facility and the PNC Facility. However,
there can be no assurance that the Company will be able to conclude any such waivers or amendments on acceptable terms or at all.
Bank Credit Line
On October 10, 2017, Hudson Technologies
Company (“HTC”), Hudson Holdings, Inc. (“Holdings”) and Aspen Refrigerants, Inc. (“ARI”), as
borrowers (collectively, the “Borrowers”), and the Company as a guarantor, became obligated under an Amended and Restated
Revolving Credit and Security Agreement (the “PNC Facility”) with PNC Bank, National Association, as administrative
agent, collateral agent and lender (“Agent” or “PNC”), PNC Capital Markets LLC as lead arranger and sole
bookrunner, and such other lenders as may thereafter become a party to the PNC Facility.
Under the terms of the PNC Facility, the
Borrowers may borrow, from time to time, up to $150 million at any time consisting of revolving loans in a maximum amount up to
the lesser of $150 million and a borrowing base that is calculated based on the outstanding amount of the Borrowers’ eligible
receivables and eligible inventory, as described in the PNC Facility. The PNC Facility also contains a sublimit of $15 million
for swing line loans and $5 million for letters of credit.
Amounts borrowed under the PNC Facility
were used by the Borrowers to consummate the acquisition of ARI and for working capital needs, certain permitted future acquisitions,
and to reimburse drawings under letters of credit. At September 30, 2019, total borrowings under the PNC Facility were $15.2 million,
and total additional availability was approximately $23.2 million. In addition, there was a $130,000 outstanding letter of credit
at September 30, 2019.
Interest on loans under the PNC Facility
is payable in arrears on the first day of each month with respect to loans bearing interest at the domestic rate (as set forth
in the PNC Facility) and at the end of each interest period with respect to loans bearing interest at the Eurodollar rate (as set
forth in the PNC Facility) or, for Eurodollar rate loans with an interest period in excess of three months, at the earlier of (a)
each three months from the commencement of such Eurodollar rate loan or (b) the end of the interest period. Interest charges with
respect to loans were initially computed on the actual principal amount of loans outstanding during the month at a rate per annum
equal to (A) with respect to domestic rate loans, the sum of (i) a rate per annum equal to the higher of (1) the base commercial
lending rate of PNC, (2) the federal funds open rate plus 0.5% and (3) the daily LIBOR plus 1.0%, plus (ii) between 0.50% and 1.00%
depending on average quarterly undrawn availability and (B) with respect to Eurodollar rate loans, the sum of the Eurodollar rate
plus between 1.50% and 2.00% depending on average quarterly undrawn availability.
Borrowers and the Company granted to the
Agent, for the benefit of the lenders, a security interest in substantially all of their respective assets, including receivables,
equipment, general intangibles (including intellectual property), inventory, subsidiary stock, real property, and certain other
assets.
The PNC Facility contains a financial covenant
requiring the Company to maintain at all times a Fixed Charge Coverage Ratio (FCCR) of not less than 1.00 to 1.00, as of the end
of each trailing period of four consecutive quarters. The FCCR (as defined in the PNC Facility) is the ratio of (a) EBITDA for
such period, minus unfinanced capital expenditures made during such period, minus the aggregate amount of cash taxes paid during
such period, to (b) the aggregate amount of all scheduled payments of principal (excluding principal payments relating to outstanding
revolving loans under the PNC Facility) and all cash payments of interest, plus cash dividends and distributions made during such
period, plus payments in respect of capital lease obligations made during such period.
On December 6, 2017, the Borrowers and
the Company as a guarantor, entered into a First Amendment to Amended and Restated Revolving Credit and Security Agreement (the
“First Revolver Amendment”) with PNC. The First Revolver Amendment, which was entered into in connection with the syndication
of the credit facility, amended the PNC Facility to allow syndicate lenders to provide certain cash management and hedging products
and services to the Borrowers, and made amendments to the PNC Facility with respect to lender approval requirements of specified
matters and other administrative matters.
On November 30, 2018, the Borrowers and
the Company as a guarantor, entered into a Second Amendment to Amended and Restated Revolving Credit and Security Agreement, Consent
and Waiver (the “Second Revolver Amendment”) with PNC Bank, National Association, as administrative agent, collateral
agent and lender and the lenders thereunder.
The Second Revolver Amendment amended the
Amended and Restated Revolving Credit and Security Agreement dated October 10, 2017 (as amended to date, the “PNC Facility”),
to replace the existing fixed charge coverage ratio until September 30, 2019 with an EBITDA covenant requiring minimum EBITDA for
the four fiscal quarters ended on the following dates: September 30, 2018 - $9,240,000; December 31, 2018 - $9,428,000; March 31,
2019 - $9,270,000; June 30, 2019 - $14,195,000. The minimum fixed charge coverage ratio of 1.00:1.00 recommenced for the quarter
ended September 30, 2019.
The Second Revolver Amendment also increased
the applicable interest rate margin to 3% for Eurodollar Rate Loans (as defined in the PNC Facility) and 2% for Domestic Rate Loans
(as defined in the PNC Facility) through September 30, 2019, with applicable margins thereafter of between 2.5% and 3% for Eurodollar
Rate Loans and 1.5% and 2% for Domestic Rate Loans based on the applicable fixed charge coverage ratio. In connection with the
Second Revolver Amendment, the Borrowers also paid the Agent a waiver and amendment fee of $250,000.
On April 17, 2019, the Borrowers, the Company
as a guarantor, and ten new subsidiaries of the Borrowers (the “New Subsidiaries”), entered into a Third Amendment
and Joinder to Amended and Restated Revolving Credit and Security Agreement and Waiver (the “Third Revolver Amendment”)
with PNC Bank, National Association, as administrative agent, collateral agent and lender and the lenders thereunder. Pursuant
to the Third Amendment, the New Subsidiaries were added as guarantors under the PNC Facility.
The Company evaluated the First, Second
and Third Revolver Amendments in accordance with the provisions of ASC 470 to determine if the Amendments were a modification or
an extinguishment of debt and concluded that amendments were a modification of the original term loan agreement for accounting
purposes. As a result, the Company capitalized an additional $250,000 of deferred financing costs in connection with the Second
Revolver Amendment, which are being amortized over the remaining term.
The PNC Facility also contains customary
non-financial covenants relating to the Company and the Borrowers, including limitations on Borrowers’ ability to pay dividends
on common stock or preferred stock, and also includes certain events of default, including payment defaults, breaches of representations
and warranties, covenant defaults, cross-defaults to other obligations, events of bankruptcy and insolvency, certain ERISA events,
judgments in excess of specified amounts, impairments to guarantees and a change of control.
The commitments under the PNC Facility
will expire and the full outstanding principal amount of the loans, together with accrued and unpaid interest, are due and payable
in full on October 10, 2022, unless the commitments are terminated and the outstanding principal amount of the loans are accelerated
sooner following an event of default.
In connection with the closing of the PNC
Facility, the Company also entered into an Amended and Restated Guaranty and Suretyship Agreement, dated as of October 10, 2017
(the “Revolver Guarantee”), pursuant to which the Company affirmed its unconditional guarantee of the payment and performance
of all obligations owing by Borrowers to PNC, as Agent for the benefit of the revolving lenders.
Term Loan Facility
On October 10, 2017, HTC, Holdings, and
ARI, as borrowers, and the Company, as guarantor, became obligated under a Term Loan Credit and Security Agreement (the “Term
Loan Facility”) with U.S. Bank National Association, as administrative agent and collateral agent (“Term Loan Agent”)
and funds advised by FS Investments and such other lenders as may thereafter become a party to the Term Loan Facility (the
“Term Loan Lenders”).
Under the terms of the Term Loan Facility,
the Borrowers immediately borrowed $105 million pursuant to a term loan (the “Initial Term Loan”) and could borrow
up to an additional $25 million for a period of eighteen months after closing to fund additional permitted acquisitions (the “Delayed
Draw Commitment”, and together with the Initial Term Loan, the “Term Loans”).
On June 29, 2018, HTC, Holdings and ARI,
as borrowers, and the Company as a guarantor, entered into a Limited Waiver and First Amendment to Term Loan Credit and Security
Agreement and Other Documents (the “First Amendment”) with U.S. Bank National Association, as collateral agent and
administrative agent, and the various lenders thereunder. The First Amendment terminated the Delayed Draw Commitment and provided
an interim waiver with respect to compliance with the existing total leverage ratio (“TLR”) covenant at June 30, 2018.
The Term Loans mature on October 10, 2023.
Principal payments on the Term Loans are required on a quarterly basis, commencing with the quarter ended March 31, 2018, in the
amount of 1% per annum of the original principal of the outstanding Term Loans. Commencing with the fiscal year ending December
31, 2018, the Term Loan Facility also requires annual principal payments of up to 50% of Excess Cash Flow (as defined in the Term
Loan Facility) if the Company’s Total Leverage Ratio (as defined in the Term Loan Facility) for the applicable year is greater
than 2.75 to 1.00. The Term Loan Facility also requires mandatory prepayments of the Term Loans in the event of certain asset dispositions,
debt issuances, and casualty and condemnation events. The Term Loans may be prepaid at the option of the Borrowers at par in an
amount up to $30 million. Additional prepayments are permitted after the first anniversary of the closing date and were originally
subject to a prepayment premium of 3% in year two, 1% in year three and zero in year four and thereafter.
Interest on the Term Loans is generally
payable on the earlier of the last day of the interest period applicable to such Eurodollar rate loan and the last day of
the Term Loan Facility, as applicable. Interest was originally payable at the rate per annum of the Eurodollar Rate (as defined
in the Term Loan Facility) plus 7.25%. The Borrowers have the option of paying 3.00% interest per annum in kind by adding
such amount to the principal of the Term Loans during no more than five fiscal quarters during the term of the Term Loan Facility.
Borrowers and the Company granted to the
Term Loan Agent, for the benefit of the Term Loan Lenders, a security interest in substantially all of their respective assets,
including receivables, equipment, general intangibles (including intellectual property), inventory, subsidiary stock, real property,
and certain other assets.
The Term Loan Facility originally contained
a financial covenant requiring the Company to maintain a Total Leverage Ratio (TLR) of not greater than 4.75 to 1.00, tested as
of the last day of the fiscal quarter. The Term Loan Facility was amended on August 14, 2018, including a waiver of the TLR covenant
at June 30, 2018, as described below. The TLR (as defined in the Term Loan Facility) is the ratio of (a) funded debt as of such
day to (b) EBITDA for the four consecutive fiscal quarters ending on the last day of such fiscal quarter. Funded debt (as defined
in the Term Loan Facility) includes amounts borrowed under the PNC Facility and the Term Loan Facility as well as capitalized lease
obligations and other indebtedness for borrowed money maturing more than one year from the date of creation thereof. As of September
30, 2019 and December 31, 2018, the TLR was approximately 13.79 to 1 and 11.82 to 1, respectively.
The Term Loan Facility also contains customary
non-financial covenants relating to the Company and the Borrowers, including limitations on their ability to pay dividends on common
stock or preferred stock, and also includes certain events of default, including payment defaults, breaches of representations
and warranties, covenant defaults, cross-defaults to other obligations, events of bankruptcy and insolvency, certain ERISA events,
judgments in excess of specified amounts, impairments to guarantees and a change of control.
In connection with the closing of the Term
Loan Facility, the Company also entered into a Guaranty and Suretyship Agreement, dated as of October 10, 2017 (the “Term
Loan Guarantee”), pursuant to which the Company affirmed its unconditional guarantee of the payment and performance of all
obligations owing by Borrowers to Term Loan Agent, as agent for the benefit of the Term Loan Lenders.
The Term Loan Agent and the Agent have
entered into an intercreditor agreement governing the relative priority of their security interests granted by the Borrowers and
the Guarantor in the collateral, providing that the Agent shall have a first priority security interest in the accounts receivable,
inventory, deposit accounts and certain other assets (the “Revolving Credit Priority Collateral”) and the Term Loan
Agent shall have a first priority security interest in the equipment, real property, capital stock of subsidiaries and certain
other assets (the “Term Loan Priority Collateral”).
On August 14, 2018, HTC, Holdings and ARI,
as borrowers, and the Company as a guarantor, entered into a Waiver and Second Amendment to Term Loan Credit and Security Agreement
(the “Second Amendment”) with U.S. Bank National Association, as collateral agent and administrative agent, and the
various lenders thereunder. The Second Amendment superseded interim waivers and amended the Term Loan Facility, to waive compliance
with the existing TLR covenant at June 30, 2018.
In addition, the Second Amendment also:
(i) increases the interest rate by 300 basis points effective July 1, 2018; (ii) waives the existing prepayment premium in the
Term Loan Facility in the event the term loan is repaid in full prior to March 31, 2020; (iii) adds an exit fee equal to three
percent (3.00%) of the outstanding principal balance of the term loans on the date of the Second Amendment (provided, that payment
of the exit fee is waived in the event that the term loan is repaid in full prior to January 1, 2020, and provided further that
the exit fee is reduced to one-and-one-half percent (1.50%) in the event that the term loan is repaid in full on or after January
1, 2020 but prior to March 31, 2020); (iv) restricted acquisitions and other equity investments prior to September 30, 2018; and
(v) required payment of a one-time waiver fee equal to one percent (1.00%) of the outstanding term loans.
On November 30, 2018, the Borrowers, and
the Company as a guarantor, entered into a Waiver and Third Amendment to Term Loan Credit and Security Agreement (the “Third
Amendment”) with U.S. Bank National Association, as collateral agent and administrative agent, and the various lenders thereunder.
The Third Amendment superseded interim
waivers and amended the Term Loan Facility to reset the maximum Total Leverage Ratio covenant contained in the Term Loan Facility
at the indicated dates as follows: (i) June 30, 2018 - 10.15:1.00; (ii) September 30, 2018 - 12.45:1.00; (iii) December 31, 2018
– 12.75:1.00; (iv) March 31, 2019 – 12.95:1.00; (v) June 30, 2019 – 8.25:1.00; September 30, 2019 – 6.40:1.00;
(vi) December 31, 2019 – 5:70:1.00; and (vii) March 31, 2020 and each fiscal quarter thereafter – 4:75:1.00.
The Third Amendment increased the scheduled
quarterly principal repayments to $525,000 effective December 31, 2018. In addition the Third Amendment requires a further repayment
of principal on or before November 14, 2019 in an amount equal to (x) 100% of Excess Cash Flow (as defined in the Term Loan Facility)
for the four fiscal quarter period ended September 30, 2019 if after giving effect to the payment thereof, the Borrowers have minimum
aggregate Undrawn Availability (as defined in the Term Loan Facility) of at least $35,000,000, (y) 50% of Excess Cash Flow for
the four fiscal quarter period ended September 30, 2019 if after giving effect to the payment thereof, the Borrowers have minimum
aggregate Undrawn Availability of at least $15,000,000 but less than $35,000,000, and (z) 0% of Excess Cash Flow for the four fiscal
quarter period ended September 30, 2019 if after giving effect to the payment thereof, the Borrowers have minimum aggregate Undrawn
Availability less than $15,000,000, with any such payment subject to reduction by the amount of any voluntary prepayments made
following the date of the Third Amendment. Any voluntary prepayments will not be subject to the prepayment premium or make-whole
provisions of the Term Loan Facility. The Third Amendment also adds a minimum liquidity requirement (consisting of cash plus undrawn
availability on the Borrowers’ revolving loan facility) of $28 million, measured monthly.
The Third Amendment also amended the exit
fee payable to the term loan lenders to five percent (5.00%) of the outstanding principal balance of the term loans on November
30, 2018 (the “Exit Fee”), which Exit Fee shall be payable in full in cash upon the earlier to occur of (x) repayment
in full of the term loans, or (y) any acceleration of the term loans. The Exit Fee will be reduced by one-tenth of one percent
(0.10%) for every $1,000,000 in voluntary prepayments made prior to January 1, 2020; provided, that, in no event shall the Exit
Fee be reduced below three percent (3.00%) as a result of any such prepayments, (ii) payment of the Exit Fee shall be waived in
the event that repayment in full of the term loans occurs prior to January 1, 2020, and (iii) the Exit Fee shall be reduced by
an amount equal to fifty percent (50%) of the amount that would otherwise payable in the event that repayment in full occurs on
or after January 1, 2020 but prior to March 31, 2020.
On April 17, 2019, the Borrowers and the
Company as a guarantor, and ten new subsidiaries of the Borrowers (the “New Subsidiaries”), entered into a Joinder
to Term Loan Credit and Security Agreement and Other Documents (the “Joinder”) with U.S. Bank National Association,
as collateral agent and administrative agent, and the various lenders thereunder. Pursuant to the Joinder, the New Subsidiaries
were added as guarantors under the Term Loan Facility.
The Company evaluated the First, Second
and Third Amendments in accordance with the provisions of ASC 470 to determine if the Amendments were a modification or an extinguishment
of debt and concluded that the amendments were a modification of the original term loan agreement for accounting purposes. As a
result, in 2018 the Company capitalized an additional $1.0 million of deferred financing costs in connection with the Second Amendment,
which are being amortized over the remaining term.
Vehicle and Equipment Loans
The Company has entered into various vehicle
and equipment loans. These loans are payable in 60 monthly payments through March 2020 and bear interest ranging from 0.0% to 8.3%.
Capital Lease Obligations
The Company rents certain equipment with
a net book value of approximately $0.03 million at September 30, 2019 under leases which have been classified as capital leases.
Scheduled future minimum lease payments under capital leases, net of interest, are as follows:
Twelve Month Period Ending September 30,
|
|
Amount
|
|
(in thousands)
|
|
|
|
|
-2020
|
|
$
|
14
|
|
-2021
|
|
|
5
|
|
-2022
|
|
|
0
|
|
-2023
|
|
|
0
|
|
-2024
|
|
|
0
|
|
Subtotal
|
|
|
19
|
|
Less interest expense
|
|
|
(1
|
)
|
Total
|
|
$
|
18
|
|
Scheduled maturities of the Company’s
long-term debt and capital lease obligations are as follows:
Twelve Month Period Ending September 30,
|
|
Amount
|
|
(in thousands)
|
|
|
|
-2020
|
|
$
|
2,114
|
|
-2021
|
|
|
2,105
|
|
-2022
|
|
|
2,100
|
|
-2023
|
|
|
2,100
|
|
-2024
|
|
|
93,712
|
|
|
|
|
|
|
Total
|
|
$
|
102,131
|
|
The above schedule reflects the scheduled
maturities related to the term loan, which has been reclassified to short-term due to the uncertainty around the Company’s
ability to comply with current and future financial covenants.
Note 9 – Other income
In August 2019, the Company received $8.9 million of cash pursuant to the settlement of a working capital adjustment dispute arising from the acquisition of
Aspen Refrigerants, Inc. in October 2017.
During the second quarter of 2019, the
Company recorded approximately $0.5 million of other income relating to a change in estimate of its cylinder deposit liability
account.