Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT (this "AMENDMENT") dated as of March 24th, 2006
and effective in accordance with SECTION 3 below, is entered into by and among
NUCO2 INC., as Borrower (the "BORROWER"), the lenders from time to time party to
the Credit Agreement referred to below (the "LENDERS") and BANK OF AMERICA,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer (the
"ADMINISTRATIVE AGENT").
STATEMENT OF PURPOSE
Pursuant to that certain Credit Agreement dated as of May 27, 2005 (as
amended, restated, supplemented or otherwise modified, the "CREDIT AGREEMENT")
by and among the Borrower, the Lenders and the Administrative Agent, the Lenders
have agreed to make, and have made, certain extensions of credit to the
Borrower.
The Borrower has requested that the Lenders amend the Credit Agreement
as provided herein. Subject to the terms and conditions set forth herein, the
Lenders are willing to consent to such amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms used and not defined
herein shall have the meanings assigned thereto in the Credit Agreement.
SECTION 2. AMENDMENTS.
(a) SECTION 1.01 of the Credit Agreement ("Defined Terms") is hereby
amended by deleting the definition for "Applicable Rate" and substituting in
lieu thereof the following new definition, to read in its entirety as follows:
"APPLICABLE RATE" means, from time to time, the following
percentages per annum, based upon the Consolidated Leverage Ratio as
set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to SECTION 6.02(b):
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APPLICABLE RATE
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PRICING LEVEL CONSOLIDATED LEVERAGE RATIO COMMITMENT FEE EURODOLLAR RATE LOANS BASE RATE LOANS
LETTERS OF CREDIT FEES
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I Greater than or equal to 2.50x 0.400% 2.000% 0.500%
II Less than 2.50x but greater than 0.350% 1.750% 0.250%
or equal to 2.00x
III Less than 2.00x but greater than 0.300% 1.500% 0.000%
or equal to 1.50x
IV Less than 1.50x but greater than 0.250% 1.250% 0.000%
or equal to 0.50x
V Less than 0.50x 0.200% 1.000% 0.000%
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Any increase or decrease in the Applicable Rate resulting from
a change in the Consolidated Leverage Ratio shall become effective as
of the first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to SECTION 6.02(b); PROVIDED,
HOWEVER, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then Pricing Level I shall apply as of
the first Business Day after the date on which such Compliance
Certificate was required to have been delivered and shall continue at
such Pricing Level I until such time as an appropriate Compliance
Certificate is provided, at which time the Pricing Level shall be reset
based upon the Consolidated Leverage Ratio for the most recently ended
fiscal period reflected in such Compliance Certificate. The Applicable
Rate in effect from the First Amendment Effective Date through the
first Business Day following receipt by the Administrative Agent of a
Compliance Certificate of the Borrower with respect to the fiscal
period ending March 31, 2006, shall be determined based upon Level IV."
(b) SECTION 1.01 of the Credit Agreement ("Defined Terms") is hereby
amended by adding the following definition, to be inserted in alphabetical
order:
"FIRST AMENDMENT EFFECTIVE DATE" means March 24th, 2006.
SECTION 3. EFFECTIVENESS. This Amendment shall become effective on
the date that the Administrative Agent shall have received satisfactory evidence
that this Amendment has been duly executed and delivered by the Borrower and the
Lenders.
SECTION 4. LIMITED EFFECT. Except as expressly provided in this
Amendment, the Credit Agreement and each other Loan Document shall continue to
be, and shall remain, in full force and effect and this Amendment shall not be
deemed or otherwise construed (a) to be a waiver of, or consent to or a
modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan Document, (b) to prejudice any other right or
remedies that the Administrative Agent or the Lenders, or any of them, may now
have or may have in the future under or in connection with the Credit Agreement
or the Loan Documents, as such documents may be amended, restated or otherwise
modified from time to time, or (c) to be a commitment or any other undertaking
or expression of any willingness to engage in any further discussion with the
Borrower or any other person, firm or corporation with respect to any waiver,
amendment, modification or any other change to the Credit Agreement or the Loan
Documents or any rights or remedies arising in favor of the Lenders or the
Administrative Agent, or any of them, under or with respect to any such
documents. References in the Credit Agreement (including references to such
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Credit Agreement as amended hereby) to "this Agreement" (and indirect references
such as "hereunder", "hereby", "herein" and "hereof") and in any Loan Document
to the Credit Agreement shall be deemed to be references to the Credit Agreement
as amended hereby.
SECTION 5. REPRESENTATIONS AND WARRANTIES/NO DEFAULT. By its
execution hereof, and after giving effect to this Amendment, the Borrower hereby
certifies that:
(a) each of the representations and warranties set forth in the Credit
Agreement and the other Loan Documents is true and correct in all material
respects as of the date hereof as if fully set forth herein (other than
representations and warranties which speak as of a specific date pursuant to the
Credit Agreement, which representations and warranties shall have been true and
correct in all material respects as of such specific dates) and that as of the
date hereof no Default or Event of Default has occurred and is continuing, and
(b) the execution, delivery and performance of this Amendment have been
authorized by all requisite corporate action on the part of the Borrower.
SECTION 6. ACKNOWLEDGEMENTS. By its execution hereof, the Borrower
hereby expressly (a) consents to the modifications and amendments set forth in
this Amendment, (b) reaffirms all of its respective covenants, representations,
warranties and other obligations set forth in each of the Loan Documents to
which it is a party and (c) acknowledges, represents and agrees that its
respective covenants, representations, warranties and other obligations set
forth in each of the Loan Documents to which it is a party remain in full force
and effect.
SECTION 7. EXPENSES. The Borrower shall pay all reasonable
out-of-pocket expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable and invoiced fees and disbursements of counsel for
the Administrative Agent.
SECTION 8. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. COUNTERPARTS. This Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
SECTION 10. FAX TRANSMISSION. A facsimile, telecopy or other
reproduction of this Amendment may be executed by one or more parties hereto,
and an executed copy of this Amendment may be delivered by one or more parties
hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction hereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
NUCO2 INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: CFO
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[SIGNATURE PAGES CONTINUE]
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Ronaldo Naval
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Name: Ronaldo Naval
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Title: Vice President
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[SIGNATURE PAGES CONTINUE]
LENDER:
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Senior Vice President
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