EXHIBIT 10.1
THIRD AMENDMENT AND WAIVER TO SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT AND WAIVER TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this "AMENDMENT") made as of February 7, 2003, by
and among NUCO2 INC., a Florida corporation (the "COMPANY"), SUNTRUST BANK, a
Georgia banking corporation, as successor by merger to SunTrust Bank, South
Florida, National Association ("SUNTRUST"), the other banks and lending
institutions which become "Lenders" as provided in the Credit Agreement defined
below (SunTrust and such other banks and lending institutions, collectively, the
"LENDERS"), XXXXXX FINANCIAL, INC., a Delaware corporation, in its capacity as
Syndication Agent (the "SYNDICATION AGENT"), BNP PARIBAS, a French banking
organization acting through its New York branch, in its capacity as
Documentation Agent (the "DOCUMENTATION AGENT"), and SUNTRUST BANK, a Georgia
banking corporation, as successor by merger to SunTrust Bank, South Florida,
National Association, in its capacity as Administrative Agent for the Lenders
(the "ADMINISTRATIVE AGENT"), as Issuing Bank (the "ISSUING BANK"), and as Swing
Line Lender (the "SWING LINE LENDER").
PRELIMINARY STATEMENTS:
The Company, the Syndication Agent, the Documentation Agent, the
Administrative Agent, the Issuing Bank, the Swing Line Lender and the Lenders
are parties to that certain Second Amended and Restated Revolving Credit
Agreement dated as of September 24, 2001, as amended by that certain First
Amendment and Waiver to Second Amended and Restated Revolving Credit Agreement
dated as of May 10, 2002 and that certain Second Amendment and Waiver to Second
Amended and Restated Revolving Credit Agreement dated as of September 27, 2002
(the "CREDIT AGREEMENT"; capitalized terms used herein and not defined herein
shall have the meanings assigned to them in the Credit Agreement), pursuant to
which the Lenders, the Administrative Agent, the Issuing Bank and the Swing Line
Lender agreed to make and continue to make certain financial accommodations to
the Company;
The Company has requested, and the Lenders, the Administrative
Agent, the Issuing Bank and the Swing Line Lender have agreed to amend certain
financial covenants and to make certain other amendments on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
a. Section 1.01 of the Credit Agreement is hereby amended by (i)
deleting the definitions of "Letter of Credit Fee", "Letter of Credit
Obligations", "Letter of Credit Subcommitment" and "Letters of Credit" in
their entirety, and (ii) replacing the definitions of "Capital
Expenditures", "Loan Documents", "Obligations", "Revolving Loan
Commitment", "Total Debt" and "Total Commitments" with the following:
"CAPITAL EXPENDITURES" shall mean, for any period, expenditures made
by the Company and its Subsidiaries to acquire or construct
property, plant and equipment (including renewals, improvements and
replacements, but excluding repairs and customer account commissions
paid) during such period computed in accordance with GAAP, but in
each case net of any loss from the disposal of, or write-off or
reserve against fixed assets during such period of previously
capitalized costs to the extent such loss, write-off or reserve
reflects charges against income.
"LOAN DOCUMENTS" shall mean this Agreement, each Exhibit and
Schedule to this Agreement, the Notes, the Guaranty Documents, the
Security Documents, and each other document, instrument, certificate
and opinion executed and delivered in connection with the foregoing,
each as amended, restated, supplemented or otherwise modified from
time to time as provided in SECTION 10.02.
"OBLIGATIONS" shall mean all amounts owing to any Agent or any
Lender pursuant to the terms of this Agreement or any other Loan
Document, including without limitation, all Advances (including all
principal and interest payments due thereunder), Fees, expenses,
indemnification and reimbursement payments, indebtedness,
liabilities, and obligations of the Company and its Subsidiaries,
covenants and duties of the Company to the Lenders and the Agents of
every kind, nature and description, direct or indirect, absolute or
contingent, due or not due, in contract or tort, liquidated or
unliquidated, arising under this Agreement or under the other Loan
Documents, by operation of law or otherwise, now existing or
hereafter arising or whether or not for the payment of money or the
performance or the nonperformance of any act, including, but not
limited to, all debts, liabilities and obligations owing by the
Company to others which the Lenders may have obtained by assignment
or otherwise, and all damages which the Company may owe to the
Lenders and the Agents by reason of any breach by the Company of any
representation, warranty, covenant, agreement or other provision of
this Agreement or of any other Loan Document.
"REVOLVING LOAN COMMITMENTS" shall mean, for any Lender at any time,
the revolving credit facility severally established by such Lender
in favor of the Company pursuant to SECTION 2.01, as the same may be
increased or decreased from time to time as a result of any
reduction thereof pursuant to SECTION 2.12, any assignment thereof
pursuant to SECTION 10.08, or any amendment thereof pursuant to
SECTION 10.02.
"TOTAL DEBT" shall mean, at any time, all then currently outstanding
obligations, liabilities and indebtedness of the Company and its
Subsidiaries on a consolidated basis of the types described in the
definition of INDEBTEDNESS (other than as described in subsection
(x) thereof), including, but not limited to, all Revolving Loans,
and Swing Line Loans under the Loan Documents.
"TOTAL COMMITMENTS" shall mean, at any time, the sum of the
Revolving Loan Commitments, and in the case of the Swing Line
Lender, the Swing Line Subcommitment.
b. Section 1.01 of the Credit Agreement is hereby further amended by
adding the following new definitions in appropriate alphabetical order:
"BUDGET" shall mean that certain budget, dated as of February 5,
2003, delivered to the Administrative Agent and attached hereto as
EXHIBIT L.
"FIXED CHARGE COVERAGE RATIO" shall mean, as of any date of
determination, the ratio of (a) the difference of (1) EBITDA for the
four preceding Fiscal Quarters MINUS (2) Capital Expenditures for
the four preceding Fiscal Quarters, to (b) Interest Expense for the
four preceding Fiscal Quarters.
"MAXIMUM PERMITTED REVOLVER OUTSTANDING AMOUNT" shall mean, at any
time, the lesser of (a) the Total Commitments then in effect, MINUS
$2,000,000; and (b) the maximum principal balance that could have
been outstanding under the Revolving Loan Commitment (including all
outstanding Revolving Loans and Swingline Loans) as of the end of
the most recent Fiscal Quarter for which the Company has delivered
financial statements to the Administrative Agent pursuant to Section
5.03, such that the Company would have had outstanding the maximum
Total Debt and Senior Debt, as the case may be, that would have
allowed the Company to remain in compliance with both the Total Debt
Coverage Ratio and the Senior Debt Coverage Ratio, respectively, as
of such date MINUS $2,000,000.
c. Section 2.01 of the Credit Agreement is hereby amended by
replacing Section 2.01 in its entirety with the following:
"SECTION 2.01 REVOLVING LOAN COMMITMENTS AND REVOLVING NOTES. (a)
Subject to and upon the terms and conditions set forth in this
Agreement, each of the Lenders severally establishes until April 29,
2004 (April 29, 2004, is hereinafter referred to as the "COMMITMENT
TERMINATION DATE") a revolving credit facility in favor of the
Company in aggregate principal at any one time outstanding not to
exceed the sum set forth opposite such Lender's name below, as the
same may be reduced from time to time pursuant to the terms hereof:
SunTrust Bank, as $15,000,000.00 33 1/3%
successor by merger to
SunTrust Bank, South
Florida, National
Association
Xxxxxx Financial, Inc. $15,000,000.00 33 1/3%
BNP Paribas $15,000,000.00 33 1/3%
TOTAL: $45,000,000.00 100.00%
PROVIDED, HOWEVER, that in no event may the aggregate principal
amount of all outstanding Revolving Loans and Swing Line Loans
outstanding exceed at any time the Maximum Permitted Revolver
Outstanding Amount. Within the foregoing limits, the Company may
borrow, repay and reborrow under the terms of this Agreement;
PROVIDED, HOWEVER, that (A) the aggregate principal amount of each
Borrowing shall not be less than $500,000 and shall be in integral
multiples of $100,000, (B) all of the Company's representations and
warranties are true and correct on and as of the date of each
Borrowing, (C) the Company may neither borrow nor reborrow should
there exist a Default or an Event of Default, or such would result
from the Borrowing, and (D) the aggregate outstanding amount of
Advances, after giving effect to each Borrowing, shall not exceed
the Maximum Permitted Revolver Outstanding Amount. At no time shall
the number of Borrowings outstanding under this Article II exceed
seven; PROVIDED that, for the purpose of determining the number of
Borrowings outstanding, all Borrowings consisting of Base Rate
Advances shall be considered as one Borrowing. Borrowings under the
Commitments shall be made through simultaneous Advances by the
Lenders, and the amount of each such Borrowing shall be prorated
among such Lenders based on the percentages set forth above. All
Advances by each Lender shall be evidenced by a single Revolving
Note payable to such Lender substantially in the form of EXHIBIT A
attached hereto. Each Revolving Note shall be dated as of the
Closing Date, shall be payable to the order of the respective Lender
in a principal amount equal to the amount set forth opposite such
Lender's name above, shall bear interest as provided for in this
Agreement and shall mature on the Commitment Termination Date or
sooner should the principal and accrued interest thereon be declared
immediately due and payable as provided for herein. No Lender shall
have any obligation to advance funds in excess of an amount equal to
the percentage set forth opposite such Lender's name above
multiplied by the Total Commitments.
(b) [Intentionally Omitted]
(c) [Intentionally Omitted]
(d) [Intentionally Omitted]"
d. Sections 2.04, 2.05, 2.06, 2.07, 2.08 and 2.09 of the Credit
Agreement are hereby amended by replacing Sections 2.04, 2.05, 2.06, 2.07,
2.08 and 2.09 in their entirety with the following:
"SECTION 2.04 [Intentionally Omitted]
SECTION 2.05 [Intentionally Omitted]
SECTION 2.06 [Intentionally Omitted]
SECTION 2.07 [Intentionally Omitted]
SECTION 2.08 [Intentionally Omitted]
SECTION 2.09 [Intentionally Omitted]"
e. Section 2.11 of the Credit Agreement is hereby amended by
replacing Section 2.11(a) in its entirety with the following:
"(a) If the sum of the (i) aggregate outstanding principal amount of
the Revolving Loans, and (ii) aggregate outstanding principal amount
of the Swing Line Loans exceed at any time the Maximum Permitted
Revolver Outstanding Amount, as reduced pursuant to SECTION 2.12 or
otherwise, the Company shall immediately repay the Swing Line Loans,
or Revolving Loans by an amount equal to such excess. Each
prepayment of Revolving Loans shall be applied first to Base Rate
Advances to the full extent thereof before application to LIBOR
Advances."
f. Section 2.16 of the Credit Agreement is hereby amended by
replacing subsection 2.16(c) in its entirety with the following:
"(c) [Intentionally Omitted]"
g. Section 2.22 of the Credit Agreement is hereby amended by
replacing subsection 2.22(a) in its entirety with the following:
"(a) The Fees and all payments of principal of, or interest on the
Notes shall be made in immediately available funds free and clear of
any defenses, set-offs, counterclaims or withholdings or deductions
for taxes to the Administrative Agent at its principal office in New
York, New York, for the accounts of the respective Lenders. All such
payments shall be made not later than 1:00 p.m. (New York, New York
time) and funds received after that hour shall be deemed to have
been received by the Administrative Agent on the next Business Day.
Payments to the Administrative Agent shall, as to the Company,
constitute payment to the applicable Lenders hereunder, other than
Swing Line Loans."
h. Section 2.23 of the Credit Agreement is hereby amended by
replacing Section 2.23 in its entirety with the following:
"SECTION 2.23 DEFAULT RATE OF INTEREST. Upon the occurrence and
during the continuance of an Event of Default, to the extent
permitted by law, the principal amount of all outstanding Swingline
Loans and Revolving Loans and all other unpaid amounts, hereunder
shall, on such date and thereafter, bear interest at the then
applicable interest rate plus an additional two percent (2.0%) per
annum until payment in full, PROVIDED, THAT, for any LIBOR Advance,
at the end of the applicable Interest Period, interest shall accrue
at the Base Rate PLUS the Applicable Margin PLUS two percent (2.0%)
per annum. Interest accruing pursuant to this SECTION 2.23 will be
due and payable upon demand."
i. Section 3.02 of the Credit Agreement is hereby amended by
replacing Section 3.02 in its entirety with the following:
"SECTION 3.02 CONDITIONS PRECEDENT TO EACH ADVANCE. At the time of
the making by the Lenders of each Advance hereunder (including the
initial Advances) (before as well as after giving effect to such
Advances and the proposed use of the proceeds thereof), the
following statements shall be true:
(a) The representations and warranties contained in
Article IV hereof are true and correct in all material respects on
and as of the date of such Borrowing as though made on and as of
such date, except insofar as such representations and warranties
speak only as of a prior date or reflect transactions and events
after the Closing Date, as permitted by the Loan Documents;
(b) No Default or Event of Default exists or would
result from such Borrowing or from the application of the proceeds
therefrom;
(d) Since the date of the most recent consolidated
financial statements of the Company described in SECTION 4.14 or
delivered to the Lenders pursuant to SECTION 5.02, nothing shall
have occurred which has had or could reasonably be expected to have
a Materially Adverse Effect;
(d) There shall be no action or proceeding instituted or
pending before any court or other governmental authority or, to the
knowledge of the Company, threatened (i) which reasonably could be
expected to have a Materially Adverse Effect, or (ii) seeking to
prohibit or restrict the ownership or operation of any portion of
the business or assets of the Company or any of its Subsidiaries, or
to compel the Company or any of its Subsidiaries to dispose of or
hold separate all or any portion of its businesses or assets, where
such portion or portions of such business(es) or assets, as the case
may be, constitute a material portion of the total businesses or
assets of the Company or its Subsidiaries;
(e) The Advances to be made and the use of proceeds
thereof shall not contravene, violate or conflict with, or involve
the Administrative Agent or any Lender in a violation of, any
Applicable Law;
(f) each Notice of Borrowing given by the Company in
accordance with SECTION 2.02(a) hereof and the acceptance by the
Company of the proceeds of any Borrowing shall constitute a
representation and warranty by the Company, made as of the time of
the making of such Borrowing that the conditions specified in
SECTION 3.02(a) have been fulfilled as of such time unless a notice
to the contrary specifically captioned "Disclosure Statement" is
received by each of the Lenders from the Company prior to 5:00 p.m.
(New York, New York time) on the Business Day immediately preceding
the date of the making of such Borrowing. To the extent that the
Required Lenders agree to make such Borrowing after receipt of a
Disclosure Statement in accordance with the preceding sentence, the
representations and warranties pursuant to the preceding sentence
will be deemed made as modified by the contents of such Disclosure
Statement and repeated, as so modified, as at the time of the making
of such Borrowing. Any such modification shall be effective only for
the occasion on which the Lenders elect to make an Advance on such
Borrowing, and unless expressly agreed by the Required Lenders in
writing to the contrary in accordance with SECTION 10.02, shall not
be deemed a waiver or modification of any condition to the making of
any future Borrowing."
j. Section 3.03 of the Credit Agreement is hereby amended by
replacing Section 3.03 in its entirety with the following:
"SECTION 3.03 EFFECT OF AMENDMENT AND RESTATEMENT. Upon the
effectiveness of this Agreement pursuant to Section 3.01, from and
after the Closing Date: (a) the terms and conditions of the Original
Credit Agreement shall be amended as set forth herein and, as so
amended, shall be restated in their entirety, but only with respect
to the rights, duties and obligations among Company, the Lenders and
the Administrative Agent accruing from and after the Closing Date;
(b) the New Lenders shall be deemed to have become Lenders hereunder
and under all other Loan Documents, and the Lenders party to the
Original Credit Agreement (the "Original Lenders") shall be deemed
to have assigned, and the New Lenders shall be deemed to have
accepted assignment of, a portion of the "Loans" and a portion of
the "Swing Line Loans" outstanding under the Original Credit
Agreement such that after giving effect thereto, all "Loans" and all
participations in "Swing Line Loans" outstanding under the Original
Credit Agreement and now outstanding under this Agreement are held
by the Lenders in amounts equal to the Lenders' Pro Rata Shares of
the respective Commitments, (c) this Agreement shall not in any way
release or impair the rights, duties, Obligations or Liens created
pursuant to the Original Credit Agreement or any other Loan Document
(as defined therein) or affect the relative priorities thereof, in
each case to the extent in force and effect thereunder as of the
Closing Date and except as modified hereby or by documents,
instruments and agreements executed and delivered in connection
herewith, and all of such rights, duties, Obligations and Liens are
assumed, ratified and affirmed by Company; (d) all indemnification
obligations of the Company under the Original Credit Agreement and
any other Loan Documents (as defined therein) shall survive the
execution and delivery of this Agreement and shall continue in full
force and effect for the benefit of the Original Lenders, the Agent,
and any other Person indemnified under the Original Credit Agreement
or any other Loan Document (as defined therein) at any time prior to
the Closing Date, (e) the Obligations incurred under the Original
Credit Agreement shall, to the extent outstanding on the Closing
Date, continue outstanding under this Agreement and shall not be
deemed to be paid, released, discharged or otherwise satisfied by
the execution of this Agreement, and this Agreement shall not
constitute a refinancing, substitution or novation of such
Obligations or any of the other rights, duties and obligations of
the parties hereunder; (f) the execution, delivery and effectiveness
of this Agreement shall not operate as a waiver of any right, power
or remedy of the Original Lenders or the Agent (as defined therein)
under the Original Credit Agreement, nor constitute a waiver of any
covenant, agreement or obligation under the Original Credit
Agreement, except to the extent that any such covenant, agreement or
obligation is no longer set forth herein or is modified hereby; (g)
any and all references to the Original Credit Agreement in each and
every Collateral Document and all other Loan Documents shall,
without further action of the parties, be deemed a reference to the
Original Credit Agreement, as amended and restated by this
Agreement, and as this Agreement shall be further amended, restated,
supplemented or otherwise modified from time to time."
k. Section 4.24 of the Credit Agreement is hereby amended by
replacing Section 4.24 in its entirety with the following:
"SECTION 4.24 SUBORDINATED DEBT. As of the Closing Date, the Company
has delivered to the Administrative Agent a complete and correct
copy of the Senior Subordinated Note Purchase Agreement and the
Subordinated Notes (including all schedules, exhibits, amendments,
supplements, modifications, assignments and all other documents
delivered pursuant thereto or in connection therewith). The Company
has the corporate power and authority to incur the Indebtedness
evidenced by the Subordinated Notes. The subordination provisions
contained in the Senior Subordinated Note Purchase Agreement are
enforceable against the holders of the Subordinated Notes by
Administrative Agent and Lenders. All Obligations, including the
Obligations to pay principal of and interest on the Loans,
constitute senior Indebtedness entitled to the benefits of the
subordination provisions contained in the Senior Subordinated Note
Purchase Agreement. The principal of and interest on the Notes and
all other Obligations will constitute "senior debt" as that or any
similar term is or may be used in any other instrument evidencing or
applicable to any other Subordinated Debt. The Company acknowledges
that the Administrative Agent and each Lender are entering into this
Agreement in reliance upon the subordination provisions of the
Subordinated Notes and this SECTION 4.24."
l. Section 5.03 of the Credit Agreement is hereby amended by
replacing subsection 5.03(a)(iii) in its entirety with the
following:
"(iii) as soon as available and in any event within 30 days after
the end of each month, (A) the consolidated balance sheet, cash flow
and related statements of income of the Company, which shall (w)
include the amount of Capital Expenditures for such month, with a
breakdown by type, (x) set forth in comparative form the
corresponding figures for such month from the projections supplied
to the Lenders by the Company pursuant to Section 5.03(a)(iv), (y)
set forth in comparative form the corresponding figures for the
Fiscal Year to date from the projections supplied to the Lenders by
the Company pursuant to Section 5.03(a)(iv) and (z) set forth a
management discussion and analysis as to the differences, if any,
between the consolidated balance sheet, cash flow and related
statements of income and such projections supplied to the Lenders by
the Company pursuant to Section 5.03(a)(iv), together with (B) the
total number of accounts lost during the four preceding Fiscal
Quarters, broken out on a monthly basis and into the following
categories: "Company Initiated", "Customer Bankruptcies", and
Customer Initiated", (C) a comparison of the actual savings
resulting from the Company's cost savings plan as described in the
Budget versus the projected savings identified in the Budget, and
(D) a report detailing driver turnover and route completion,
substantially in the form of Schedule 5.03 attached hereto; and"
m. Section 6.15 of the Credit Agreement is hereby amended by
replacing Section 6.15 in its entirety with the following:
"SECTION 6.15 CAPITAL EXPENDITURES. The Company shall not, and shall
not permit any of its Subsidiaries to, make Capital Expenditures
during any Fiscal Quarter in excess of the amount listed for such
Fiscal Quarter on ANNEX A attached hereto."
n. Section 7.01 of the Credit Agreement is hereby amended by
replacing such Section 7.01 in its entirety with the following:
"SECTION 7.01 SENIOR DEBT COVERAGE RATIO. The Company shall not
permit the Senior Debt Coverage Ratio at any time during a period
specified below to be greater than (i) 2.50 to 1.00 for the period
beginning October 1, 2002 through and including March 31, 2003; (ii)
2.25 to 1.00 for the period beginning April 1, 2003 through and
including September 30, 2003; (iii) 2.00 to 1.00 for the period
beginning October 1, 2003 through and including December 31, 2003,
and (iv) 1.75 to 1.00 for the period beginning January 1, 2004 and
thereafter."
o. Section 7.02 of the Credit Agreement is hereby amended by
replacing Section 7.02 in its entirety with the following:
"SECTION 7.02 TOTAL DEBT COVERAGE RATIO. The Company shall not
permit the Total Debt Coverage Ratio at any time during a period
specified below to be greater than (i) 4.50 to 1.00 for the period
beginning October 1, 2002 through and including March 31, 2003; (ii)
4.00 to 1.00 for the period beginning April 1, 2003 through and
including September 30, 2003; (iii) 3.75 to 1.00 for the period
beginning October 1, 2003 through and including December 31, 2003,
(iv) 3.50 to 1.00 for the period beginning January 1, 2004 and
thereafter."
p. Section 7.03 of the Credit Agreement is hereby amended by
replacing such Section 7.03 in its entirety with the following:
"SECTION 7.03 DEBT SERVICE COVERAGE RATIO. The Company shall not
permit the Debt Service Coverage Ratio as of the last day of any
Fiscal Quarter of the Company to be less than (i) 1.20 to 1.00 for
the period beginning October 1, 2002 through and including December
31, 2002; (ii) 1.25 to 1.00 for the period beginning January 1, 2003
through and including March 31, 2003; and (iii) 1.30 to 1.00 for the
period beginning April 1, 2003 and thereafter."
q. Section 7.04 of the Credit Agreement is hereby amended by
replacing Section 7.04 in its entirety with the following:
"SECTION 7.04 MINIMUM EBITDA. The Company shall maintain at all
times, calculated as of the last day of each Fiscal Quarter, Minimum
EBITDA for the four preceding Fiscal Quarters ending on the last day
of such Fiscal Quarter of not less than (i) $17,000,000 for the
Fiscal Quarter ending March 31, 2003; (ii) $18,500,000 for the
Fiscal Quarter ending June 30, 2003; (iii) $20,500,000 for the
Fiscal Quarter ending September 30, 2003; (iv) $23,500,000 for the
Fiscal Quarter ending December 31, 2003; and (v) $25,500,000 for the
Fiscal Quarter ending March 31, 2004 and thereafter; PROVIDED,
HOWEVER, EBITDA for the Fiscal Quarter ended June 30, 2002, shall be
increased by adding the costs and charges taken by the Company
during such quarter in connection with the write-down of certain
assets, an increase in the reserve for accounts receivable and costs
associated with various personnel and consulting actions in the
amount of $4,904,000."
r. Article VII of the Credit Agreement is hereby amended by adding
the following new Section 7.05:
"SECTION 7.05 FIXED CHARGE COVERAGE RATIO. As of the last day of
each Fiscal Quarter, commencing with the Fiscal Quarter ending March
31, 2003, the Fixed Charge Coverage Ratio shall be not less than (i)
0.75 to 1.00 for the Fiscal Quarter ending March 31, 2003; (ii) 0.83
to 1.00 for the Fiscal Quarter ending June 30, 2003; (iii) 1.05 to
1.00 for the Fiscal Quarter ending September 30, 2003; (iv) 1.20 to
1.00 for the Fiscal Quarter ending December 31, 2003; and (v) 1.30
to 1.00 for the Fiscal Quarter ending March 31, 2004 and
thereafter."
s. Article VII of the Credit Agreement is hereby amended by adding
the following new Section 7.06:
"SECTION 7.06 MINIMUM QUARTERLY EBITDA. The Company shall maintain
at all times, calculated as of the last day of each Fiscal Quarter,
Minimum EBITDA for the three preceding fiscal months ending on the
last day of such Fiscal Quarter of not less than (i) $4,850,000 for
the Fiscal Quarter ending March 31, 2003; (ii) $5,850,000 for the
Fiscal Quarter ending June 30, 2003; (iii) $5,600,000 for the Fiscal
Quarter ending September 30, 2003; (iv) $6,250,000 for the Fiscal
Quarter ending December 31, 2003; and (v) $6,450,000 for the Fiscal
Quarter ending March 31, 2004 and thereafter."
t. Section 9.01 of the Credit Agreement is hereby amended by
replacing subsection 9.01(b) in its entirety with the following:
"(b) [Intentionally Omitted]"
u. ANNEX A to the Credit Agreement is hereby amended by replacing
ANNEX A in its entirety with the ANNEX A attached hereto.
v. The Credit Agreement is hereby amended by adding a new EXHIBIT L
in the form of EXHIBIT L attached hereto.
2. WAIVER.
The Company has informed the Administrative Agent and the Lenders
that as of December 31, 2002, the Company failed to comply with the requirements
under Section 7.04 of the Credit Agreement (Minimum EBITDA). The Lenders hereby
waive the Event of Default that has arisen as a result of the failure of the
Company to comply with Section 7.04 as of the Fiscal Quarter ending December 31,
2002. This waiver is limited solely to the matter stated above and shall not be
deemed to waive or amend any other provision of the Credit Agreement and shall
not serve as a waiver or amendment of any other matter prohibited by the terms
of the Credit Agreement.
3. CONSENT.
The Lenders consent to and approve Amendment No. 10 to the Senior
Subordinated Note Purchase Agreement ("AMENDMENT NO. 10"), dated as of February
7, 2003, by and among the Company and each of the investors signatory thereto.
4. CONDITIONS PRECEDENT. This Amendment shall become effective upon
satisfaction of the following conditions:
a. The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the date hereof, including reimbursement
or payment of all out of pocket expenses (including reasonable fees, charges and
disbursements of King & Spalding LLP, counsel to the Administrative Agent)
required to be reimbursed or paid by the Company hereunder, under any other Loan
Document and under any other agreement with the Administrative Agent.
b. The Administrative Agent shall have received executed originals
of this Amendment from the Company and the Required Lenders, each dated the date
hereof, in form and substance satisfactory to the Administrative Agent.
c. The Administrative Agent shall have received an executed copy of
Amendment No. 10, in form and substance satisfactory to the Administrative Agent
and the Lenders.
d. The Administrative Agent, for its account and the account of each
Lender, shall have received an amendment fee equal to 67.5 basis points on the
Total Commitments, to be distributed to the Lenders on a pro rata basis.
e. The Administrative Agent shall have received such other documents
as any Lender may reasonably request.
5. OTHER AGREEMENTS.
a. The Company hereby affirms that each of the representations and
warranties of the Company contained in the Credit Agreement and in any other
Loan Documents (except to the extent that any such representation or warranty
expressly relates solely to an earlier date and for changes therein permitted or
contemplated by the Credit Agreement) is correct in all material respects on and
as of the date hereof and after giving effect to this Amendment. In addition,
with respect to this Amendment, the Company warrants and represents that the
execution, delivery and performance by the Company of this Amendment (i) are
within the Company's corporate power; (ii) have been duly authorized by all
necessary or proper corporate action; (iii) are not in contravention of any
provision of the Company's certificate of incorporation or bylaws; (iv) will not
violate any law or regulation, or any order or decree of any Governmental
Authority; (v) will not conflict with or result in the breach or termination of,
constitute a default under or accelerate any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which the Company is a party or by which the Company or any of its property is
bound; (vi) will not result in the creation or imposition of any Lien upon any
of the property of the Company other than those in favor of the Administrative
Agent for the benefit of the Lenders, all pursuant to the Loan Documents; and
(vii) do not require the consent or approval of any Governmental Authority. The
Company further represents and warrants that this Amendment has been duly
executed and delivered for the benefit of or on behalf of the Company and
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
b. Except as expressly waived or amended hereby, all terms of the
Credit Agreement and the other Loan Documents shall be and remain in full force
and effect and shall constitute the legal, valid, binding and enforceable
obligations of the Company to the Administrative Agent and the Lenders. To the
extent any terms and conditions in any other Loan Documents shall contradict or
be in conflict with any terms or conditions of the Credit Agreement, after
giving effect to this Amendment, such terms and conditions are hereby deemed
modified and amended accordingly to reflect the terms and conditions of the
Credit Agreement as modified and amended hereby. The Company acknowledges and
expressly agrees that the Lenders reserve the right to, and do in fact, require
strict compliance with the terms and provisions of the Credit Agreement, as
amended by this Amendment.
c. The Company hereby restates, ratifies and reaffirms each and
every term and condition and every covenant set forth in the Credit Agreement
and the other Loan Documents, effective as of the date hereof, and represents
that, after giving effect to this Amendment and the waiver contained herein, no
Default or Event of Default has occurred and is continuing as of the date
hereof.
d. The Company agrees to pay on demand all costs and expenses of the
Administrative Agent in connection with the preparation, execution, delivery and
enforcement of this Amendment, the closing hereof, and any other transactions
contemplated hereby, including the fees and out-of-pocket expenses of the
Administrative Agent's counsel.
e. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original and all of which, taken together,
shall constitute one and the same instrument.
f. Company hereby reaffirms its covenant in Section 5.06 of the
Credit Agreement to permit the Administrative Agent, any Lender, or any person
designated by the Administrative Agent or any Lender to visit and inspect any of
its or its Subsidiaries' properties and to deliver to the Administrative Agent
and the Lenders any audits of the Company's properties, corporate books and
financial records, in form and substance satisfactory to the Administrative
Agent and the Lenders; PROVIDED, FURTHER, that should a third party be retained
for any or all inspections or field audits, such third party shall be selected
by the Administrative Agent in its sole discretion, and Administrative Agent
shall not be bound by any previous agreements or understandings to use
particular appraisers or inspectors. In addition, Company reaffirms its
obligation to pay all reasonable fees and expenses relating to any inspections
or field audits conducted by the Administrative Agent, any Lender or third party
auditors.
g. The Company hereby releases, acquits, and forever discharges each
of the Lenders, the Administrative Agent, the Swing Line Lender and the Issuing
Bank, and each and every past and present subsidiary, affiliate, stockholder,
officer, director, agent, servant, employee, representative, and attorney of the
Lenders, the Administrative Agent, the Swing Line Lender and the Issuing Bank,
from any and all claims, causes of action, suits, debts, liens, obligations,
liabilities, demands, losses, costs and expenses (including attorneys' fees) of
any kind, character, or nature whatsoever, known or unknown, fixed or
contingent, which Company may have or claim to have now or which may hereafter
arise out of or connected with any act of commission or omission of any Lender,
the Administrative Agent, Swing Line Lender or the Issuing Bank, existing or
occurring prior to the date of this Amendment or any instrument executed prior
to the date of this Amendment.
h. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (AND NOT THE LAWS OF CONFLICTS), OF THE STATE OF NEW
YORK AND ALL APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
i. This Amendment shall be binding upon and inure to the benefit of
the parties hereto, their respective successors, successors-in-titles, and
assigns.
j. This Amendment sets forth the entire understanding of the parties
with respect to the matters set forth herein, and shall supersede any prior
negotiations or agreements, whether written or oral, with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed under seal by their respective officers thereunto duly
authorized, as of the date first above written.
NUCO2 INC.,
A FLORIDA CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
SUNTRUST BANK
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX FINANCIAL, INC.
INDIVIDUALLY AND AS SYNDICATION AGENT
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
BNP PARIBAS,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
