Exhibit 10.3
FIRST AMENDMENT TO CREDIT AGREEMENT; FIRST AMENDMENT TO
PLEDGE AGREEMENT; AND FIRST AMENDMENT TO SECURITY AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT; FIRST AMENDMENT TO PLEDGE
AGREEMENT; AND FIRST AMENDMENT TO SECURITY AGREEMENT (collectively, this
"AMENDMENT"), dated as of October 1, 2004, among NUCO2 INC., a Florida
corporation (the "BORROWER"), the Lenders party thereto from time to time (each,
a "LENDER" and, collectively, the "LENDERS"), BNP PARIBAS, as Administrative
Agent (in such capacity, the "ADMINISTRATIVE AGENT"), and BNP PARIBAS, as
Collateral Agent under the Pledge Agreement and Security Agreement referred to
below (in such capacity, the "COLLATERAL AGENT"). All capitalized terms used
herein and not otherwise defined herein shall have the meanings provided such
terms in the Credit Agreement.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to a Credit Agreement, dated as of August 25, 2003 (the "CREDIT
AGREEMENT");
WHEREAS, the Borrower and the Administrative Agent are party to a
Pledge Agreement, dated as of August 25, 2003 (the "PLEDGE AGREEMENT");
WHEREAS, the Borrower and the Administrative Agent are party to a
Security Agreement, dated as of August 25, 2003 (the "SECURITY AGREEMENT"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement, the
Pledge Agreement, the Security Agreement and Exhibit M to the Credit Agreement,
and the Lenders wish to grant consents to certain provisions of the Credit
Agreement, in each case as herein provided;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS TO CREDIT AGREEMENT.
1. Section 1.01 of the Credit Agreement is hereby further amended by
deleting clause (b) thereof in its entirety and inserting the following new
clause (b) in lieu thereof:
"(b) Subject to and upon the terms and conditions set forth
herein, (A) each Lender with a B Term Loan Commitment on the Initial
Borrowing Date severally agrees to make on such date, and (B) each
Lender with a B Term Loan Commitment on the Pain Acquisition Date
severally agrees to make on such date, in each case, a term loan
(each, a "B Term Loan" and, collectively, the "B Term Loans" and,
together with the A Term Loans, the "Term Loans") to the Borrower,
which B Term Loans: (i) shall be incurred pursuant to two single
drawings, the first of which shall be on the Initial Borrowing Date
and the second of which shall be on the Pain Acquisition Date; (ii)
shall be denominated in Dollars; (iii) except as hereafter provided,
shall, at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or Eurodollar Loans, provided
that (A) except as otherwise specifically provided in Section 1.10(b),
all B Term Loans comprising the same Borrowing shall at all times be
of the same Type, and (B) unless either the Administrative Agent
otherwise agrees in its sole discretion or has determined that the
Syndication Date has occurred (at which time this clause (B) shall no
longer be applicable), prior to the 90th day following the Initial
Borrowing Date, B Term Loans may only be incurred and maintained as,
and/or converted into, Eurodollar Loans so long as all such
outstanding Eurodollar Loans, together with all outstanding A Term
Loans and Revolving Loans that are maintained as Eurodollar Loans, are
subject to an Interest Period of one month which begins and ends on
the same day, and (iv) shall not exceed for any such Lender at the
time of incurrence thereof on the Initial Borrowing Date or the Pain
Acquisition Date, as the case may be, that aggregate principal amount
as is equal to the B Term Loan Commitment of such Lender as in effect
on the Initial Borrowing Date or the Pain Acquisition Date, as the
case may be (before giving effect to the termination thereof pursuant
to Section 3.03(c)). Once repaid, B Term Loans incurred hereunder may
not be reborrowed.".
2. Section 1.09 of the Credit Agreement is hereby amended by (i)
inserting the words "or B Term Loans" immediately following the first reference
to the text "A Term Loans" appearing in clause (vii) of said Section and (ii)
inserting the text "or B Term Loans, as the case may be," immediately following
the text "A Term Loans" in each other place such text appears in clause (vii) of
said Section.
3. Section 3.03(c) of the Credit Agreement is amended by inserting the
following text prior to the period at the end of said Section:
"; provided that, notwithstanding the foregoing, the portion of the
Total B Term Loan Commitment effected pursuant to the First Amendment
shall terminate in its entirety on the Pain Acquisition Date (after
giving effect to the incurrence of B Term Loans on such date).".
4. Section 4.01(a) of the Credit Agreement is hereby amended by
deleting clauses (iv) and (v) thereof in their entirety and inserting
the following text in lieu thereof:
"(iv) each voluntary prepayment of Term Loans pursuant to this
Section 4.01(a) shall be applied to the A Term Loans and B Term Loans
on a PRO RATA basis (with the A TL Percentage of the aggregate amount
of such prepayment to be applied as a prepayment of the A Term Loans
and the B TL Percentage of the aggregate amount of such prepayment to
be applied as a prepayment of the B Term Loans); and
(v) each prepayment of A Term Loans and B Term Loans pursuant to
this Section 4.01(a) shall reduce the then remaining Scheduled
Repayments of the respective Tranche of Term Loans on a PRO RATA basis
(based upon the then remaining principal amount of each such Scheduled
Repayment of the respective Tranche after giving effect to all prior
reductions thereto).".
5. Section 4.01(b) of the Credit Agreement is hereby amended by
deleting the last sentence appearing in said Section and inserting the following
sentence in lieu thereof:
"Each prepayment of A Term Loans and B Term Loans pursuant to
this Section 4.01(b) shall reduce the then remaining Scheduled
Repayments of the respective Tranche of Term Loans on a pro rata basis
(based upon the then remaining principal amount of each such Scheduled
Repayment of the respective Tranche after giving effect to all prior
reductions thereto).".
6. Section 4.02(b) of the Credit Agreement is hereby amended by (i)
inserting the text "(i)" immediately following the first reference to "(b)"
appearing in said Section and (ii) inserting the following new clause (ii) at
the end of said Section:
"(ii) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date set forth below (each, a "Scheduled B
Repayment Date"), the Borrower shall be required to repay that
principal amount of B Term Loans, to the extent then outstanding, as
is set forth opposite each such date below (each such repayment, as
the same may be reduced as provided in Section 4.01(a), 4.01(b) or
4.02(h), a "Scheduled B Repayment" and, together with the Schedule A
Repayments, the "Scheduled Repayments"):
Scheduled B Repayment Date Amount
-------------------------- ------
December 31, 2004 $57,500
March 31, 2005 $57,500
June 30, 2005 $57,500
September 30, 2005 $57,500
December 31, 2005 $57,500
March 31, 2006 $57,500
June 30, 2006 $57,500
September 30, 2006 $57,500
December 31, 2006 $57,500
March 31, 2007 $57,500
June 30, 2007 $57,500
September 30, 2007 $57,500
December 31, 2007 $57,500
March 31, 2008 $57,500
June 30, 2008 $57,500
Term B Loan Maturity Date $22,137,500".
7. Section 4.02(h) of the Credit Agreement is hereby amended by (i)
deleting the text "A" immediately preceding the phrase "Term Loans" in clause
(i) of the first sentence thereof, (ii) inserting the word "and" immediately
after the comma at the end of sub-clause (i) of the first sentence thereof,
(iii) deleting all of the text following the words "Total Revolving Loan
Commitment" appearing in sub-clause (y) of clause (ii) thereof through the end
of said Section and inserting the following text in lieu thereof:
"). The amount of each principal repayment of Term Loans made pursuant
to Sections 4.02(c), (d), (e), (f) and (g) shall be applied (i) pro
rata to each Tranche of Term Loans (based upon the A TL Percentage or
B TL Percentage, as the case may be, of the aggregate amount to be so
applied) and (ii) to reduce the then remaining Scheduled Repayments of
the respective Tranche of Term Loans on a pro rata basis (based upon
the then remaining principal amounts of the Scheduled Repayments of
such Tranche of Term Loans after giving effect to all prior reductions
thereto).".
8. Section 7.05(a) of the Credit Agreement is hereby amended by
inserting the following new clause (iii) at the end thereof:
"(iii) The PRO FORMA consolidated balance sheet of the Borrower
and its Subsidiaries at September 30, 2004, and the PRO FORMA
consolidated statement of income of the Borrower and its Subsidiaries
for the twelve months ended September 30, 2004, in each case after
giving effect to the Pain Acquisition and the financing therefor,
copies of which have been furnished to the Lenders prior to the First
Amendment Effective Date, present fairly in all material respects the
PRO FORMA consolidated financial position of the Borrower and its
Subsidiaries as of September 30, 2004, and the PRO FORMA consolidated
results of operations of the Borrower and its Subsidiaries for the
twelve-month period ended on September 30, 2004.".
9. Section 7.05(d) of the Credit Agreement is hereby amended by (i)
inserting the text "(i)" immediately after the reference to "(d)" therein and
(ii) inserting the following new clause (ii) at the end of said Section:
"(ii) The Updated Projections delivered to the Administrative
Agent and the Lenders prior to the Pain Acquisition Date have been
prepared in good faith and are based on reasonable assumptions, and
there are no statements or conclusions in the Updated Projections
which are based upon or include information known to the Borrower to
be misleading in any material respect or which fail to take into
account material information known to the Borrower regarding the
matters reported therein. On the Pain Acquisition Date, the Borrower
believes that the Updated Projections are reasonable and attainable,
it being recognized by the Lenders, however, that projections as to
future events are not to be viewed as facts and that the actual
results during the period or periods covered by the Updated
Projections may differ from the projected results and such differences
may be material.".
10. Section 7.06 of the Credit Agreement is hereby amended by
inserting the text "or the Pain Acquisition" immediately following the text
"Transaction" in clause (i) thereof.
11. Section 7.08 of the Credit Agreement is hereby amended by deleting
such clause (a) in its entirety and inserting the following new clause (a) in
lieu thereof:
"(a) All proceeds of Term Loans incurred (i) on the Initial
Borrowing Date, shall be used by the Borrower to finance, in part, the
Refinancing and to pay fees and expenses incurred in connection with
the Transaction and (ii) on the Pain Acquisition Date, shall be used
by the Borrower to finance the Pain Acquisition and to pay fees and
expenses incurred in connection therewith.".
12. Section 8.16(a) of the Credit Agreement is hereby amended by
deleting clause (viii) of said Section (and the word "and" appearing immediately
prior to said clause) and inserting the following text in lieu thereof:
"(viii) both before and after giving effect to such Permitted
Acquisition and the payment of all post-closing purchase price
adjustments required (in the good faith determination of the Borrower)
in connection with such Permitted Acquisition (and all other Permitted
Acquisitions for which such purchase price adjustments may be required
to be made) and all capital expenditures (and the financing thereof)
reasonably anticipated by the Borrower to be made by the Borrower and
its Subsidiaries within the 180-day period (such period for any
Permitted Acquisition, a "POST-CLOSING PERIOD") following such
Permitted Acquisition (including capital expenditures in the business
acquired pursuant to such Permitted Acquisition and in the businesses
acquired pursuant to all other Permitted Acquisitions with
Post-Closing Periods ended during the Post-Closing Period of such
Permitted Acquisition), the Total Unutilized Revolving Loan Commitment
shall equal or exceed $5,000,000; and (ix) the Borrower shall have
delivered to the Administrative Agent and each Lender a certificate
executed by its chief financial officer, certifying to the best of
such officer's knowledge, compliance with the requirements of
preceding clauses (i) through (viii), inclusive, and containing the
calculations (in reasonable detail) required by preceding clauses
(iii), (iv), (vi), (vii) and (viii).".
13. The Borrower and the Lenders hereby agree that the Pain
Acquisition and the Bay Area Acquisition may be effected as Permitted
Acquisitions subject to the terms, conditions and requirements of Section 8.16
of the Credit Agreement, except that (I) clause (vi) of Section 8.16(a) of the
Credit Agreement shall be determined without regard to, and shall not apply to,
the Pain Acquisition or the Bay Area Acquisition, so long as the aggregate
consideration paid in connection with the Pain Acquisition and the Bay Area
Acquisition (determined as provided in said clause (vi)) does not exceed
$18,000,000 and $6,000,000, respectively and (II) in the case of the Bay Area
Acquisition, same may not be consummated after March 31, 2005.
14. Section 8 of the Credit Agreement is hereby amended by inserting
the following new Section 8.18:
"8.18 MORTGAGE AMENDMENTS. Within 45 days following the First
Amendment Effective Date (unless otherwise agreed by the Collateral
Agent), the Borrower shall have delivered to the Collateral Agent, or
caused to be delivered to the Collateral Agent, (x) fully executed
counterparts of amendments (the "Mortgage Amendments"), in form and
substance satisfactory to the Administrative Agent, to each of the
Mortgages, together with evidence that counterparts of each of the
Mortgage Amendments have been delivered to the title company insuring
the Lien on the Mortgages for recording in all places to the extent
necessary or desirable, in the judgment of the Collateral Agent,
effectively to maintain a valid and enforceable first priority
mortgage lien on the Mortgaged Properties in favor of the Collateral
Agent for the benefit of the Secured Creditors and (y) either
endorsements to the existing Mortgage Policies or new Mortgage
Policies assuring the Collateral Agent that each Mortgage is a valid
and enforceable first priority mortgage lien on the respective
Mortgaged Properties, free and clear of all defects and encumbrances
except Permitted Encumbrances.".
15. Section 9.07(a) of the Credit Agreement is hereby amended by
deleting clause (ii) of said Section and the table appearing therein in their
entirety and inserting the following text in lieu thereof:
"(ii) during any period of the Borrower set forth below (taken as one
accounting period), the Borrower and its Subsidiaries may make Capital
Expenditures, so long as the aggregate amount of all such Capital
Expenditures does not exceed in any such period set forth below the
amount set forth opposite such period below:
PERIOD AMOUNT
Fiscal year ended June 30, 2005 $23,000,000
Fiscal year ended June 30, 2006 $20,000,000
Fiscal year ended June 30, 2007 $20,400,000
July 1, 2007 through August 25, 2008 $21,500,000".
16. Section 9.07(b) of the Credit Agreement is hereby amended by
deleting the word "quarter" in each place such word appears in said Section and
inserting the word "period" in lieu thereof.
17. Section 9.09 of the Credit Agreement is hereby amended by deleting
in its entirety the table appearing in said Section and inserting the following
new table in lieu thereof:
Fiscal Quarter Ending Amount
--------------------- ------
September 30, 2004 $23,800,000
December 31, 2004 $24,800,000
March 31, 2005 $25,900,000
June 30, 2005 $26,950,000
September 30, 2005 $27,950,000
December 31, 2005 $28,950,000
March 31, 2006 $29,900,000
June 30, 2006 $30,800,000
September 30, 2006 $32,000,000
December 31, 2006 $32,910,000
March 31, 2007 $33,810,000
June 30, 2007 and thereafter $34,710,000
18. Section 9.10 of the Credit Agreement is hereby amended by (i)
deleting the periods appearing in the left column of the table therein
commencing on September 30, 2004 and ending on September 29, 2005 and the
related ratios set forth opposite such periods and (ii) inserting the following
text in lieu thereof:
"September 30, 2004
through and including
September 29, 2005 2.00:1.00".
19. Section 9.11 of the Credit Agreement is hereby amended by (i)
deleting the periods appearing in the left column of the table therein
commencing on December 31, 2004 and ending on September 29, 2005 and the related
ratios set forth opposite such periods and (ii) inserting the following text in
lieu thereof:
"December 31, 2004
through and including
September 29, 2005 3.00:1.00".
20. Section 9.12 of the Credit Agreement is hereby amended by (i)
deleting the text "September 30, 2003 through and including March 31, 2007"
appearing in the left column of the table therein and the related ratio set
forth opposite such text and (ii) inserting the following text in lieu thereof:
"September 30, 2004 1.00:1.00
through and including
March 31, 2005
June 30, 2005 0.90:1.00
September 30, 2005 1.00:1.00".
through and including
March 31, 2007
21. Section 9.13 of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new text in lieu
thereof:
"9.13 MINIMUM QUARTERLY FREE CASH FLOW. [Intentionally deleted].".
22. Section 9.14 of the Credit Agreement is hereby amended by (i)
inserting the word "or" immediately at the end of clause (v) of said Section and
(ii) deleting clauses (vi) and (vii) of said Section in their entirety and
inserting the following text in lieu thereof:
"(vi) make any payment on account on the purchase, redemption,
conversion, exchange, retirement, acquisition, defeasance or sinking
fund payment with respect to any Indebtedness that is junior or
subordinate to any Indebtedness under the Credit Documents (other than
payments of interest on the Senior Subordinated Notes in accordance
with the terms of the Senior Subordinated Note Documents).".
23. Section 9.20 of the Credit Agreement is hereby amended by deleting
said Section in its entirety.
24. Section 10 of the Credit Agreement is hereby amended by deleting
in its entirety the parenthetical "(subject to the provisions of Section 14)"
appearing in clause (v) in the remedies portion of said Section.
25. The definition of "Consolidated EBITDA" appearing in Section 11 of
the Credit Agreement is hereby amended by inserting the following proviso prior
to the period at the end of the first sentence of said definition:
"; provided that, notwithstanding anything to the contrary contained
above in this definition or clause (iii) of the definition of PRO
FORMA Basis, upon the consummation of the Pain Acquisition or the Bay
Area Acquisition, as the case may be, in the case of any such
calculation of Consolidated EBITDA for any period which includes a
fiscal quarter of the Borrower occurring prior to (or ending on) the
Pain Acquisition Date or the date of the consummation of the Bay Area
Acquisition, as the case may be, it is understood and agreed that the
portion of "Consolidated EBITDA" attributable to the Acquired Entity
or Business acquired pursuant to the Pain Acquisition or the Bay Area
Acquisition, as the case may be, for any such fiscal quarter included
in such period shall equal $1,100,000 (in the case of the Pain
Acquisition) and $275,000 (in the case of the Bay Area Acquisition)".
26. The definition of "Test Period" appearing in Section 11 of the
Credit Agreement is hereby amended by deleting the proviso appearing in the
first sentence of said definition and inserting the following new proviso in
lieu thereof:
"; PROVIDED HOWEVER that for purposes of any determination of
compliance with Section 9.12 at any time on or prior to June 30, 2004,
the period commencing on July 1, 2003 and ending on the last day of
the fiscal quarter of the Borrower then last ended (taken as one
accounting period).".
27. Section 11 of the Credit Agreement is hereby further amended by
(i) deleting the definitions of "Applicable Margin", "B Term Loan Commitment",
"B Term Loan Obligations", "Document", "Debt Subordination", "Insolvency
Proceedings", "Lien Enforcement Action", "Lien Subordination", "Loan
Obligations", "Purchase Date", "Purchase Notice", "Purchasing Lender", "Required
B Term Loan Lenders", "Required Senior Lenders", "Senior Creditors", "Senior
Lenders", "Senior Loan Maturity Date", "Senior Loan Obligations", "Senior
Loans", "Senior Obligations", "Triggering Event" and "Triggering Event Notice"
and (ii) inserting in the appropriate alphabetical order the following new
definitions:
"APPLICABLE MARGIN" in respect of A Term Loans, B Term Loans,
Revolving Loans and Swingline Loans for any Margin Reduction Period
shall mean, from and after any Start Date to and including the
corresponding End Date, the respective percentage per annum set forth
below under the respective Type and Tranche of Loans and opposite the
respective Level (i.e., ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ or Level 3, as the case may
be) indicated to have been achieved on the applicable Test Date for
such Start Date (as shown in the respective officer's certificate
delivered pursuant to Section 8.01(f) or the first proviso below):
Swingline
Loans
A Term and A Term B Term
Loans B Term Revolving Loans Loans Revolving
Consolidated maintained Loans Loans maintained maintained Loans
Total as maintained as maintained as as maintained as
Leverage Base Rate Base Rate as Base Rate Eurodollar Eurodollar Eurodollar
Level Ratio Loans Loans Loans Loans Loans Loans
----- ----- ----- ----- ----- ----- ----- -----
1 Less than 2.50:1.00 2.50% 2.75% 2.50% 3.50% 3.75% 3.50%
Greater than or
equal to 2.50:1.00
but less than
2 3.00:1.00 2.75% 3.00% 2.75% 3.75% 4.00% 3.75%
Greater than or
3 equal to 3.00:1.00 3.00% 3.25% 3.00% 4.00% 4.25% 4.00%
; PROVIDED, HOWEVER, that if the Borrower fails to deliver the financial
statements required to be delivered pursuant to Section 8.01(b) or (c)
(accompanied by the officer's certificate required to be delivered
pursuant to Section 8.01(f) showing the applicable Consolidated Total
Leverage Ratio on the relevant Test Date) on or prior to the respective
date required by such Sections, then Level 3 pricing shall apply until
such time, if any, as the financial statements required as set forth
above and the accompanying officer's certificate have been delivered
showing the pricing for the respective Margin Reduction Period is at a
Level below Level 3 (it being understood that, in the case of any late
delivery of the financial statements and officer's certificate as so
required, any reduction in the Applicable Margin shall apply only from
and after the date of the delivery of the complying financial statements
and officer's certificate); PROVIDED FURTHER, that (i) for the period
from the First Amendment Effective Date to the date of the delivery of
the Borrower's financial statements (and related officer's certificate)
in respect of its fiscal quarter ending closest to December 31, 2004,
Level 2 pricing shall apply and (ii) notwithstanding anything to the
contrary set forth above, Level 3 pricing shall apply at all times when
any Default or Event of Default is in existence.
"A TL Percentage" shall mean, at any time, a fraction (expressed as
a percentage) the numerator of which is equal to the aggregate principal
amount of all A Term Loans outstanding at such time and the denominator
of which is equal to the aggregate principal amount of all Term Loans
outstanding at such time.
"B Term Loan Commitment" shall mean, with respect to each Lender,
the amount set forth opposite such Lender's name in Schedule I (as in
effect on the Initial Borrowing Date in the case of B Term Loans
incurred on such date and as in effect on the Pain Acquisition Date in
the case of B Term Loans incurred on such date, in either case) directly
below the column entitled "B Term Loan Commitment," as the same may be
terminated pursuant to Sections 3.03 and/or Section 10. (1)
"B TL Percentage" shall mean, at any time, a fraction (expressed as
a percentage) the numerator of which is equal to the aggregate principal
amount of all B Term Loans outstanding at such time and the denominator
of which is equal to the aggregate principal amount of all Term Loans
outstanding at such time.
"Bay Area Acquisition" shall mean the purchase by the Borrower of
those certain assets of Bay Area Equipment Co., Inc. previously
identified by the Borrower to the Administrative Agent.
"Document" shall mean (i) the Credit Documents, (ii) the
Senior Subordinated Note Documents and (iii) on and after the execution
and delivery thereof, for purposes of Sections 7.02, 7.03, 7.04, 7.06,
7.07 and 7.23, the Pain Acquisition Documents.
"First Amendment" shall mean the First Amendment to this Agreement,
dated as of October 1, 2004.
"First Amendment Effective Date" shall have the meaning provided in
Part V, Section 6 of the First Amendment.
"Majority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as
defined in, this Agreement if all outstanding Obligations of the other
Tranches under this Agreement were repaid in full and all Commitments
with respect thereto were terminated.
"Mortgage Amendments" shall have the meaning provided in Section 8.18
"Pain Acquisition" shall mean the acquisition by the borrower of
certain assets of Pain Enterprises pursuant to, and in accordance with
the terms of, the Pain Acquisition Agreement.
"Pain Acquisition Agreement" shall mean that certain Asset Purchase
Agreement, dated as of October 1, 2004, by and between Pain Enterprises
and the Borrower.
"Pain Acquisition Date" shall mean the date on which the Pain
Acquisition is consummated and the incurrence of Term Loans pursuant to
the First Amendment is made, which date shall be the First Amendment
Effective Date.
"Pain Acquisition Documents" shall mean the Pain Acquisition
Agreement and any other agreements, instruments and documents entered
into in connection with the Pain Acquisition.
----------
1 B Term Loan Commitment to be increased by $13.0 million by way of Schedule I.
"Pain Enterprises" shall mean Pain Enterprises, Inc., an Indiana
Corporation.
"Post-Closing Period" shall have the meaning provided in Section
8.16(a).
"Scheduled B Repayment" shall have the meaning provided in Section
4.02(b).
"Scheduled B Repayment Date" shall have the meaning provided in
Section 4.02(b).
"Scheduled Repayments" shall have the meaning provided in Section
4.02(b).
"Updated Projections" shall mean the projections prepared by the
Borrower in connection with the Pain Acquisition and the financing
thereof and delivered to the Lenders prior to the First Amendment
Effective Date.
28. Section 13.04(a) of the Credit Agreement is hereby amended by (i)
deleting the text "(iii) except during the continuance of an Event of Default
(at which time the Collateral release provisions shall instead be governed by
the provisions of Section 14.02(a) hereof) or as otherwise expressly provided in
the Security Documents," appearing in said Section and inserting the text ",
(iii)" in lieu thereof, (ii) deleting the text "Section 13.12 or Section 14"
appearing in clause (iv) of the third proviso of the first sentence of said
Section and inserting the text "or Section 13.12" in lieu thereof, and (iii)
deleting the text "except during the continuance of an Event of Default (at
which time the Subsidiaries Guaranty release provisions shall instead be
governed by the provisions of Section 14.02(b))" appearing in said Section.
29. Section 13.04(b) of the Credit Agreement is hereby amended by (i)
deleting the text "subject to Section 14.01(b)," appearing in clause (iii) of
the second proviso of the first sentence of said Section.
30. Section 13.06 of the Credit Agreement is hereby amended by
deleting clause (d) of said Section in its entirety.
31. Section 13.12(a) of the Credit Agreement is hereby amended by (i)
deleting the text "during the continuance of an Event of Default (as which time
the Collateral release provisions shall instead be governed by the provisions of
Section 14.02(a) hereof) or" appearing in clause (ii) of the first proviso
appearing in said Section, (ii) deleting the text ", Section 4.02(h), Section
13.06(d), this Section 13.12 or Section 14" appearing in clause (iii) of the
first proviso appearing in said Section and inserting the text "Section 13.06(d)
or Section 13.12" in lieu thereof, (iii) deleting the text "except during the
continuance of an Event of Default (at which time the Subsidiaries Guaranty
release provisions shall instead be governed by the provisions of Section
14.02(b))" appearing in clause (vi) of the first proviso appearing in said
Section and (iv) deleting clauses (6), (7) and (8) of the second proviso
appearing in said Section and inserting the following text in lieu thereof:
"(6) except in cases where additional extensions of term loans and/or
revolving loans are being afforded substantially the same treatment
afforded to the Term Loans and Revolving Loans pursuant to this
Agreement as in effect on the First Amendment Effective Date, without
the consent of the Majority Lenders of each Tranche which is being
allocated a lesser prepayment, repayment or commitment reduction as a
result of the actions described below, alter the required application of
any prepayments or repayments (or commitment reduction), as between the
various Tranches, pursuant to Section 4.01 or 4.02 (excluding Section
4.02(b)) (although the Required Lenders may waive, in whole or in part,
any such prepayment, repayment or commitment reduction, so long as the
application, as amongst the various Tranches, of any such prepayment,
repayment or commitment reduction which is still required to be made is
not altered), (7) without the consent of the Majority Lenders of the
respective Tranche affected thereby, amend the definition of Majority
Lenders (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may
be included in the determination of the Majority Lenders on
substantially the same basis as the extensions of Loans and Commitments
are included on the First Amendment Effective Date) and (8) without the
consent of the Majority Lenders of the respective Tranche, reduce the
amount of or extend the date of, any Scheduled Repayment (except that,
if additional Loans are made pursuant to a given Tranche, the Scheduled
Repayments of such Tranche may be increased on a proportionate basis
without the consent otherwise required by this clause (8).".
32. Section 14 is hereby amended by deleting said Section in its
entirety.
33. Schedules I and II to the Credit Agreement are hereby amended by
deleting same in their entirety and inserting in lieu thereof Schedules I and
II, respectively, attached hereto.
34. In connection with the incurrence of B Term Loans pursuant to this
Amendment, the Lenders and the Borrower hereby agree that, notwithstanding
anything to the contrary contained in the Credit Agreement, (i) the
Administrative Agent may take all such actions as may be necessary to ensure
that all Lenders with outstanding B Term Loans continue to participate in each
Borrowing of outstanding B Term Loans (after giving effect to the incurrence of
B Term Loans pursuant to this Amendment) on a PRO RATA basis (including by
requiring the "breaking" of existing Eurodollar contracts prior to the last day
of the Interest Period therefor) and (ii) if any existing Borrowings of B Term
Loans that are maintained as Eurodollar Loans are affected as a result thereof,
any breakage costs of the type described in Section 1.11 of the Credit Agreement
incurred by such Lenders in connection therewith shall be for the account of the
Borrower.
35. Notwithstanding anything to the contrary contained in the Credit
Agreement or any other agreement to which the Borrower and/or the Lenders may be
a party, the Borrower and the Lenders hereby agree that ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a
division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services Inc., and Bank of America,
N.A. shall be "Co-Documentation Agents" with respect to the Credit Agreement.
II. AMENDMENTS TO EXHIBIT M (FORM OF SUBSIDIARIES GUARANTY)
1. The first paragraph of Exhibit M to the Credit Agreement
(hereinafter, "Exhibit M") is hereby amended by deleting the text "August [__],
2003" appearing in the first paragraph thereof and inserting the text "[_____
__, __]" in lieu thereof.
2. The definition of "Lender Creditors" appearing in Section 3 of
Exhibit M is hereby amended by deleting the text "Senior Lender Creditors and
the Subordinated Lender Creditors" appearing in said definition and inserting
the text "Lenders, each Issuing Lender, the Administrative Agent, the Collateral
Agent and each other Agent" in lieu thereof.
3. The definition of "Secured Creditors" appearing in Section 3 of the
Exhibit M is hereby amended by deleting the text "Senior Creditors and
Subordinated Lender Creditors" appearing in said definition and inserting the
text "Lender Creditors and the Other Creditors" in lieu thereof.
4. Section 3 of Exhibit M is hereby further amended by deleting the
definitions of "SENIOR CREDITORS", "SENIOR GUARANTEED OBLIGATIONS", "SENIOR
LENDER CREDITORS", "SUBORDINATED GUARANTEED OBLIGATIONS" and "SUBORDINATED
LENDER CREDITORS" appearing in said Section.
5. Section 10 of Exhibit M is hereby amended by deleting the text
"(subject to Section 29)" appearing in said Section.
6. Section 17 of Exhibit M is hereby amended by (i) deleting the first
appearance of the text "(i)" appearing in said Section, (ii) deleting the text
"and (ii) upon the occurrence and during the continuance of an Event of Default,
the Required Senior Lenders shall be entitled to release any or all Guarantors
from this Guaranty pursuant to Section 23 in the circumstances contemplated by
Section 14.02(b) of the Credit Agreement" appearing in said Section in its
entirety, (iii) deleting the text "clause (i) of" appearing in said Section,
(iv) deleting the first appearance of the text "(x)" appearing in said Section,
(v) deleting the text ", (y) said clause (i) shall not apply to any release of
any Guarantor (or the termination of this Agreement) effected in accordance with
clause (ii) of the preceding proviso and (z) any modification to the provisions
of Section 29 shall require the consent of each Secured Creditor" appearing in
said Section, and (vi) deleting the last two sentences of said Section in their
entirety and inserting the following new sentences in lieu thereof:
"For the purpose of this Guaranty, the term "Class" shall mean each
class of Secured Creditors with outstanding Obligations secured hereby
at such time, i.e., whether (x) the Lender Creditors as holders of the
Credit Document Obligations or (y) the Other Creditors as holders of
the Other Obligations. For the purpose of this Guaranty, the term
"Requisite Creditors" of any Class shall mean (x) with respect to the
Credit Document Obligations, the Required Lenders or, to the extent
provided in Section 13.12 of the Credit Agreement, each of the Lenders
and (y) with respect to the Other Obligations, the holders of at least
a majority of all Other Obligations outstanding from time to time (as
determined by the Administrative Agent in such reasonable manner as is
acceptable to it).".
7. Section 19 of Exhibit M is hereby amended by deleting the text "and
the subordination provisions in Section 29 hereof" appearing in said Section.
8. Section 23 of Exhibit M is hereby amended by deleting the text "or
14.02(b)" appearing in said Section.
9. Section 29 of Exhibit M is hereby deleted in its entirety.
III. AMENDMENTS TO PLEDGE AGREEMENT
1. The first paragraph of the Pledge Agreement is hereby amended by
deleting the text ", (i) on a senior basis, the Senior Creditors (as defined
below), and (ii) on a junior and fully subordinated basis, the Subordinated
Lender Creditors" appearing therein and inserting the text "the Secured
Creditors (as defined below)" in lieu thereof.
2. The third recital of the Pledge Agreement is hereby amended by
deleting the text "Senior Creditors (on a senior basis) and the Subordinated
Lender Creditors (on a junior and fully subordinated basis)" appearing therein
and inserting the text "Secured Creditors" in lieu thereof.
3. Section 1 of the Pledge Agreement is hereby amended by deleting the
text "Senior Creditors (on a senior basis), and the Subordinated Lender
Creditors (on a junior and fully subordinated basis)," appearing therein and
inserting the text "Secured Creditors" in lieu thereof.
4. The definition of "LENDER CREDITORS" appearing in Section 2 of the
Pledge Agreement is hereby amended by deleting the text "Senior Lender Creditors
and the Subordinated Lender Creditors" appearing in said definition and
inserting the text "Lenders, each Issuing Lender, the Administrative Agent, the
Collateral Agent and each other Agent" in lieu thereof.
5. The definition of "SECURED CREDITORS" appearing in Section 2 of the
Pledge Agreement is hereby amended by deleting the text "have the meaning set
forth in the recitals hereto" appearing in said definition and inserting the
text "mean the Lender Creditors and the Other Creditors" in lieu thereof.
6. Section 2 of the Pledge Agreement is hereby further amended by
deleting the definitions of "SENIOR CREDITORS", "SENIOR LENDER CREDITORS" and
"SUBORDINATED LENDER CREDITORS" appearing in said Section.
7. Section 3.1 of the Pledge Agreement is hereby amended by deleting
each appearance of the text "Senior Creditors (on a senior basis) and the
Subordinated Lender Creditors (on a junior and fully subordinated basis)"
appearing in said Section and inserting the text "Secured Creditors" in lieu
thereof.
8. Section 3.6 of the Pledge Agreement is hereby amended by deleting
said Section in its entirety and inserting the text "3.6 SUBORDINATION.
[Intentionally deleted]." in lieu thereof.
9. Section 8 of the Pledge Agreement is hereby amended by deleting the
text "Required Senior Lenders" appearing in said Section and inserting the text
"Required Secured Creditors" in lieu thereof.
10. Section 14 of the Pledge Agreement is hereby amended by deleting
the text ", the term "collateral agents" shall be replaced with the term
"pledgees", the phrase "10.2 and 10.8" appearing in Section 15(ii) thereof shall
be replaced with the phrase "20 and 22", the number "10.2" appearing in Section
15(iii) thereof shall be replaced with the number "22"" appearing in said
Section and inserting the text "and the term "collateral agents" shall be
replaced with the term "pledgees"" in lieu thereof.
IV. AMENDMENTS TO SECURITY AGREEMENT
1. The first paragraph of the Security Agreement is hereby amended by
deleting the text ", (i) on a senior basis, the Senior Creditors (as defined
below), and (ii) on a junior and fully subordinated basis, the Subordinated
Lender Creditors" appearing therein and inserting the text "the Secured
Creditors (as defined below)" in lieu thereof.
2. The third recital of the Security Agreement is hereby amended by
deleting the text "Senior Creditors (on a senior basis) and the Subordinated
Lender Creditors (on a junior and fully subordinated basis)" appearing therein
and inserting the text "Secured Creditors" in lieu thereof.
3. Section 1.1(a) of the Security Agreement is hereby amended by
deleting the text "(i) the Senior Creditors (on a senior basis) and (ii) the
Subordinated Lender Creditors (on a junior and fully subordinated basis)"
appearing therein and inserting the text "the Secured Creditors" in lieu
thereof.
4. Section 1.1(a) of the Security Agreement is hereby amended by
deleting the text "(other than Excluded Proceeds)" appearing in clause (xxiii)
of said Section.
5. Section 1.1(b) of the Security Agreement is hereby amended by
deleting said Section in its entirety and inserting the text "(b) [Intentionally
deleted]." in lieu thereof.
6. Section 1.1(c) of the Security Agreement is hereby renamed Section
1.1(b).
7. Section 7.1 of the Security Agreement is hereby amended by deleting
the text "Required Senior Lenders" appearing therein and inserting the text
"Required Secured Creditors" in lieu thereof.
8. Section 7.4 of the Security Agreement is hereby deleted in its
entirety and replaced with the following new Section 7.4:
"7.4 APPLICATION OF PROCEEDS. (a) All moneys collected by the
Collateral Agent (or, to the extent the Pledge Agreement or any other
Security Document requires proceeds of collateral under such other
Security Document to be applied in accordance with the provisions of
this Agreement, the Pledgee or collateral agent under such other
Security Document) upon any sale or other disposition of the Collateral,
together with all other moneys received by the Collateral Agent
hereunder, shall be applied as follows:
FIRST, to the payment of all amounts owing the Collateral Agent of
the type described in clauses (iii), (iv) and (v) of the definition of
"Obligations";
SECOND, to the extent proceeds remain after the application pursuant
to the preceding clause (i), to the payment of all amounts owing to the
Administrative Agent of the type described in clauses (v) and (vi) of
the definition of "Obligations";
THIRD, to the extent proceeds remain after the application pursuant
to the preceding clauses (i) and (ii), an amount equal to the
outstanding Primary Obligations shall be paid to the Secured Creditors
as provided in Section 7.4(e) hereof, with each Secured Creditor
receiving an amount equal to its outstanding Primary Obligations or, if
the proceeds are insufficient to pay in full all such Primary
Obligations, its PRO RATA Share of the amount remaining to be
distributed;
FOURTH, to the extent proceeds remain after the application pursuant
to the preceding clauses (i) through (iii), inclusive, an amount equal
to the outstanding Secondary Obligations shall be paid to the Secured
Creditors as provided in Section 7.4(e) hereof, with each Secured
Creditor receiving an amount equal to its outstanding Secondary
Obligations or, if the proceeds are insufficient to pay in full all such
Secondary Obligations, its PRO RATA Share of the amount remaining to be
distributed; and
FIFTH, to the extent proceeds remain after the application pursuant
to the preceding clauses (i) through (iv), inclusive, and following the
termination of this Agreement pursuant to Section 10.8(a) hereof, to the
relevant Assignor or to whomever may be lawfully entitled to receive
such surplus.
(b) For purposes of this Agreement, (x) "PRO RATA SHARE" shall mean,
when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's
Primary Obligations or Secondary Obligations, as the case may be, and
the denominator of which is the then outstanding amount of all Primary
Obligations or Secondary Obligations, as the case may be, (y) "PRIMARY
OBLIGATIONS" shall mean (i) in the case of the Credit Document
Obligations, all principal of, premium, fees and interest on, all Loans,
all Unpaid Drawings, the Stated Amount of all outstanding Letters of
Credit and all Fees and (ii) in the case of the Other Obligations, all
amounts due under each Interest Rate Protection Agreement and each Other
Hedging Agreement entitled to the benefits hereof (other than
indemnities, fees (including, without limitation, attorneys' fees) and
similar obligations and liabilities) and (z) "SECONDARY OBLIGATIONS"
shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective PRO RATA Shares, the amounts received by such Secured
Creditors hereunder shall be applied (for purposes of making
determinations under this Section 7.4 only) (i) FIRST, to their Primary
Obligations and (ii) SECOND, to their Secondary Obligations. If any
payment to any Secured Creditor of its PRO RATA Share of any
distribution would result in overpayment to such Secured Creditor, such
excess amount shall instead be distributed in respect of the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor whose Primary
Obligations or Secondary Obligations, as the case may be, have not been
paid in full to receive an amount equal to such excess amount multiplied
by a fraction the numerator of which is the unpaid Primary Obligations
or Secondary Obligations, as the case may be, of such Secured Creditor
and the denominator of which is the unpaid Primary Obligations or
Secondary Obligations, as the case may be, of all Secured Creditors
entitled to such distribution.
(d) Each of the Secured Creditors, by their acceptance of the
benefits hereof and of the other Security Documents, agrees and
acknowledges that if the Lender Creditors receive a distribution on
account of undrawn amounts with respect to Letters of Credit issued
under the Credit Agreement (which shall only occur after all outstanding
Revolving Loans under the Credit Agreement and Unpaid Drawings have been
paid in full), such amounts shall be paid to the Administrative Agent
under the Credit Agreement and held by it, for the equal and ratable
benefit of the Lender Creditors, as cash security for the repayment of
Obligations owing to the Lender Creditors as such. If any amounts are
held as cash security pursuant to the immediately preceding sentence,
then upon the termination of all outstanding Letters of Credit under the
Credit Agreement, and after the application of all such cash security to
the repayment of all Obligations owing to the Lender Creditors after
giving effect to the termination of all such Letters of Credit, if there
remains any excess cash, such excess cash shall be returned by the
Administrative Agent to the Collateral Agent for distribution in
accordance with Section 7.4(a) hereof.
(e) All payments required to be made hereunder shall be made (x) if
to the Lender Creditors, to the Administrative Agent for the account of
the Lender Creditors and (y) if to the Other Creditors, to the trustee,
paying agent or other similar representative (each, a "REPRESENTATIVE")
for the Other Creditors or, in the absence of such a Representative,
directly to the Other Creditors.
(f) For purposes of applying payments received in accordance with
this Section 7.4, the Collateral Agent shall be entitled to rely upon
(i) the Administrative Agent and (ii) the Representative or, in the
absence of such a Representative, upon the Other Creditors for a
determination (which the Administrative Agent, each Representative and
the Other Creditors agree (or shall agree) to provide upon request of
the Collateral Agent) of the outstanding Primary Obligations and
Secondary Obligations owed to the Lender Creditors or the Other
Creditors, as the case may be. Unless it has received written notice
from a Lender Creditor or an Other Creditor to the contrary, the
Administrative Agent and each Representative, in furnishing information
pursuant to the preceding sentence, and the Collateral Agent, in acting
hereunder, shall be entitled to assume that no Secondary Obligations are
outstanding. Unless it has written notice from an Other Creditor to the
contrary, the Collateral Agent, in acting hereunder, shall be entitled
to assume that no Interest Rate Protection Agreements and no Other
Hedging Agreements are in existence.
(g) It is understood that the Assignors shall remain jointly and
severally liable to the extent of any deficiency between the amount of
the proceeds of the Collateral and the aggregate amount of the
Obligations.".
9. The definition of "LENDER CREDITORS" appearing in Article IX of the
Security Agreement is hereby amended by deleting the text "Senior Lender
Creditors and the Subordinated Lender Creditors" appearing in said definition
and inserting the text "Lenders, each Issuing Lender, the Administrative Agent,
the Collateral Agent and each other Agent" in lieu thereof.
10. Article IX of the Security Agreement is hereby further amended by
(i) deleting the definitions of "EXCLUDED PROCEEDS," "QUATERNARY OBLIGATIONS",
"REQUIRED SECURED CREDITORS", "SENIOR CREDIT DOCUMENT OBLIGATIONS", "SENIOR
CREDITORS", "SENIOR LENDER CREDITORS", "SENIOR OBLIGATIONS", "SUBORDINATED
CREDIT DOCUMENT OBLIGATIONS", "SUBORDINATED LENDER CREDITORS" and "TERTIARY
OBLIGATIONS" appearing in said Section and (ii) inserting the following new
definitions in said Article in appropriate alphabetical order:
"EXCLUDED PROCEEDS" means, at any time, all Proceeds (i) received by
any Assignor from any sale or other disposition of Collateral where the
respective Collateral is released pursuant to the provisions of Section
10.8(b) of this Agreement and (ii) required to be applied as a mandatory
repayment of Credit Document Obligations pursuant to the terms of the
Credit Agreement.
"REQUIRED SECURED CREDITORS" shall mean (i) at any time when any
Credit Document Obligations are outstanding or any Commitments under the
Credit Agreement exist, the Required Lenders (or, to the extent provided
in Section 13.12 of the Credit Agreement, each of the Lenders) and (ii)
at any time after all of the Credit Document Obligations have been paid
in full and all Commitments under the Credit Agreement have been
terminated and no further Commitments may be provided thereunder, the
holders of a majority of the Other Obligations.
11. Section 10.2 of the Security Agreement is hereby amended by
deleting the last two sentence of said Section and inserting the following text
in lieu thereof:
"For the purpose of this Agreement, the term "Class" shall mean each
class of Secured Creditors with outstanding Obligations secured hereby
at such time, i.e., whether (x) the Lender Creditors as holders of the
Credit Document Obligations or (y) the Other Creditors as holders of
the Other Obligations. For the purpose of this Agreement, the term
"Requisite Creditors" of any Class shall mean (x) with respect to the
Credit Document Obligations, the Required Lenders or, to the extent
provided in Section 13.12 of the Credit Agreement, each of the Lenders
and (y) with respect to the Other Obligations, the holders of at least
a majority of all Other Obligations outstanding from time to time (as
determined by the Administrative Agent in such reasonable manner as is
acceptable to it).".
12. Section 11 of Annex O to the Security Agreement is hereby amended
by deleting the text of said Section (other than the heading) in its entirety
and inserting the text "[Intentionally deleted.]" in lieu thereof.
13. Sections 13(b) and (c) of Annex O to the Security Agreement is
hereby deleted in its entirety.
14. Section 14 of Annex O to the Security Agreement is hereby amended
by deleting the text of said Section (other than the heading) in its entirety
and inserting the text "[Intentionally deleted.]" in lieu thereof.
15. Section 15 of Annex O to the Security Agreement is hereby amended
by deleting the text of said Section (other than the heading) in its entirety
and inserting the text "[Intentionally deleted.]" in lieu thereof.
16. Section 16 of Annex O to the Security Agreement is hereby amended
by deleting the text of said Section (other than the heading) in its entirety
and inserting the text "[Intentionally deleted.]" in lieu thereof.
17. Section 17 of Annex O to the Security Agreement is hereby amended
by deleting the first sentence of said Section in its entirety.
18. Section 18 of Annex O to the Security Agreement is hereby amended
by deleting the text of said Section (other than the heading) in its entirety
and inserting the text "[Intentionally deleted.]" in lieu thereof.
V. MISCELLANEOUS PROVISIONS.
1. In order to induce the Lenders to enter into this Amendment, the
Borrower hereby represents and warrants that:
(a) no Default or Event of Default exists as of the First Amendment
Effective Date (as defined below), both before and after giving effect
to this Amendment; and
(b) all of the representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all
material respects on the First Amendment Effective Date, both before and
after giving effect to this Amendment, with the same effect as though
such representations and warranties had been made on and as of the First
Amendment Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all
material respects as of such specific date).
2. All parties hereto hereby acknowledge and agree that all extensions
of credit (including all Term Loans and all amounts owing with respect thereto)
pursuant to the Credit Agreement, as amended hereby, shall be entitled to the
benefits of the Subsidiaries Guaranty and all Security Documents executed and
delivered pursuant to the Credit Agreement, and to the benefit of all other
Credit Documents.
3. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
4. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
5. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
6. This Amendment shall become effective on the date (the "FIRST
AMENDMENT EFFECTIVE DATE") when the following conditions have been met to the
satisfaction of the Administrative Agent and the Lenders:
(i) each of the Borrower and each Lender (including each Lender which
is providing a B Term Loan Commitment pursuant to this Amendment) shall
have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at the Notice Office;
(ii) (v) there shall have been delivered to the Administrative Agent
and the Lenders true and correct copies of all Pain Acquisition
Documents, certified as such by an Authorized Officer of the Borrower,
and all terms and conditions of the Pain Acquisition Documents shall be
in form and substance reasonably satisfactory to the Administrative
Agent, (w) all Pain Acquisition Documents shall have been duly executed
and delivered by the parties thereto and shall be in full force and
effect, (x) the representations and warranties set forth in the Pain
Acquisition Documents shall be true and correct in all material
respects, (y) each of the conditions precedent to the consummation of
the Pain Acquisition as set forth in the Pain Acquisition Documents
shall have been satisfied to the reasonable satisfaction of the
Administrative Agent and the Required Lenders or waived with the consent
of the Administrative Agent and the Required Lenders, and (z) the Pain
Acquisition shall have been consummated in accordance with all
applicable law, the relevant Pain Acquisition Documents (without giving
effect to any amendment or modification thereof or waiver with respect
thereto unless consented to by the Agents and the Required Lenders) and
the relevant requirements of the Credit Agreement (as amended hereby);
(iii) all necessary governmental (domestic and foreign), regulatory
and material third party approvals in connection with the Pain
Acquisition, the transactions contemplated by this Amendment and the
other Pain Acquisition Documents and otherwise referred to herein or
therein, shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being
taken by any competent authority which restrains, prevents or imposes,
in the judgment of the Administrative Agent, materially adverse
conditions upon the consummation of the Pain Acquisition and the
transactions contemplated by this Amendment;
(iv) there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or
other restraint pending or notified prohibiting or imposing materially
adverse conditions upon, or materially delaying, or making economically
unfeasible, the consummation of the Pain Acquisition or the transactions
contemplated by this Amendment;
(v) the Administrative Agent shall have received from each Credit
Party (including any Credit Party acquired pursuant to the Pain
Acquisition) certified copies of resolutions of the Board of Directors
or statements of unanimous written consent in lieu thereof of such
Credit Party with respect to the matters set forth in this Amendment and
the transactions contemplated herein and such resolutions shall be in
form and substance reasonably satisfactory to the Administrative Agent;
(vi) all corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this
Amendment and the Pain Acquisition Documents shall be reasonably
satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received all information and copies of
all documents and papers, including records of corporate proceedings or
governmental approvals, good standing certificates and bring-down
telegrams or facsimiles, if any, which the Administrative Agent may have
reasonably requested in connection therewith, such documents and papers
where appropriate to be certified by proper corporate or governmental
authorities;
(viii) the Administrative Agent shall have received a solvency
certificate from the Chief Financial Officer of the Borrower in the form
of Exhibit J to the Credit Agreement, except that such certificate shall
be dated the First Amendment Effective Date and shall be modified (to
the satisfaction of the Administrative Agent) to provide that such
certificate is being provided after giving effect to the Pain
Acquisition and the related financing thereof;
(ix) the Administrative Agent shall have received, and shall be
reasonably satisfied with both the form and substance of, an opinion of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower,
with respect to the matters contemplated by this Amendment;
(x) the Borrower shall have paid to the Administrative Agent and the
Lenders all costs, fees and expenses (including, without limitation,
legal fees and expenses) payable to the Administrative Agent and the
Lenders to the extent then due;
(xi) the Administrative Agent shall have received true and correct
copies of the PRO FORMA financial statements and the Updated Projections
referred to in Sections 7.05(a)(iii) and (d)(ii) of the Credit Agreement
(as amended hereby), all of which shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Required
Lenders;
(xii) the requisite holders of the Senior Subordinated Notes shall
have duly authorized, executed and delivered an amendment to the Senior
Subordinated Note Purchase Agreement in form and substance satisfactory
to the Administrative Agent, consenting to, inter alia, the consummation
of the Pain Acquisition and the Bay Area Acquisition and the incurrence
of incremental B Term Loans contemplated by this Amendment;
(xiii) the Administrative Agent shall have received a certificate,
dated the First Amendment Effective Date and signed on behalf of the
Borrower by the President of the Borrower, stating that all of the
conditions in clause (ii), (iii) and (iv) of this Part V, Section 6 and
in Section 6.01 of the Credit Agreement have been satisfied and
otherwise meeting the requirements of clause (ix) of Section 8.16(a) of
the Credit Agreement (as amended hereby); and
(xiv) the Administrative Agent shall have received certified copies
of Requests for Information or Copies (Form UCC-11), or equivalent
reports, listing all effective financing statements that name Pain
Enterprises or any of its Subsidiaries as debtor and that are filed in
the relevant jurisdictions, together with copies of such other financing
statements that name Pain Enterprises or any of its Subsidiaries as
debtors (none of which shall cover the Collateral except to the extent
evidencing Permitted Liens or in respect of which the Collateral Agent
shall have received appropriate termination statements executed by the
secured party thereunder).
Notwithstanding anything to the contrary contained above or elsewhere in this
Amendment, unless the First Amendment Effective Date and the Pain Acquisition
Date occur on or prior to October 31, 2004, the First Amendment Effective Date
shall not thereafter occur and this Amendment shall be of no further force or
effect. Unless the Administrative Agent has received actual notice from any
Lender that the conditions contained above have not been met, upon the
satisfaction of the condition described in clause (i) of the second preceding
sentence and upon the Administrative Agent's good faith determination that the
other conditions described above have been met, the First Amendment Effective
Date shall be deemed to have occurred, regardless of any subsequent
determination that one or more of the conditions thereto had not been met
(although the occurrence of the First Amendment Effective Date shall not release
the Borrower from any liability for failure to satisfy one or more of the
applicable conditions specified above). The Administrative Agent will give the
Borrower and each Lender prompt notice of the occurrence of the First Amendment
Effective Date. The acceptance by the Borrower of the proceeds of the Loans on
the Pain Acquisition Date shall be deemed to constitute a representation and
warranty by the Borrower (including, without limitation, for purposes of Section
10.02 of the Credit Agreement) to the effect that all conditions contained above
in this Section 6 have been satisfied as of the First Amendment Effective Date.
7. So long as the First Amendment Effective Date occurs, the Borrower
shall pay to each Lender which has executed a counterpart hereof a consent fee
equal to 0.25% of the sum of (x) its Revolving Loan Commitment as in effect on
the First Amendment Effective Date and (y) the aggregate principal amount of its
Term Loans outstanding on the First Amendment Effective Date (exclusive of
additional B Term Loans incurred on such date). All fees payable pursuant to the
immediately preceding sentence shall be paid to the Administrative Agent within
one Business Day after the First Amendment Effective Date, which fees shall be
distributed by the Administrative Agent to the relevant Lenders in the amounts
specified in the immediately preceding sentence.
8. From and after the First Amendment Effective Date, all references
in the Credit Agreement and each of the other Credit Documents to the Credit
Agreement, the Pledge Agreement and the Security Agreement shall be deemed to be
references to the Credit Agreement, the Pledge Agreement or the Security
Agreement, as the case may be, as modified hereby.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
NUCO2 INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Title: Chief Financial Officer
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
BNP PARIBAS,
Individually and as Administrative Agent
By /s/ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Title: Managing Director
Name: ▇. ▇▇▇▇▇▇▇▇▇
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
Title: Director Merchant Banking Group
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BNP PARIBAS SECURITIES CORP.
By /s/ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Title: Managing Director
Name: ▇. ▇▇▇▇▇▇▇▇▇
THE ROYAL BANK OF SCOTLAND PLC
By /s/ Una ▇. ▇▇▇▇
----------------------------------
Title: Vice President
Name: Una M. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL,
a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇
BUSINESS FINANCIAL SERVICES,
INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BANK OF AMERICA, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Annex II
Page 2
SCHEDULE I
A B Revolving
Lender Term Loan Term Loan Loan
------ Commitment Commitment Commitment
---------- ---------- ----------
BNP Paribas 10,000,000.00 $4,280,000.00 $3,333,333.34
Bank of America, N.A. $7,500,000.00 $2,930,000.00 $2,500,000.00
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of $6,250,000.00 $2,000,000.00 $2,083,333.33
▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial
Services Inc.
The Royal Bank of Scotland plc $6,250,000.00 $3,790,000.00 $2,083,333.33
TOTAL: $30,000,000.00 $13,000,000.00 $10,000,000.00