EXHIBIT 10.1
FIRST AMENDMENT AND WAIVER TO SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT AND WAIVER TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this "Amendment") made as of May 10, 2002, 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 (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 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 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 adding the
following new definitions of "First Amendment Effective Date" and "Summary of
Customer Data":
"First Amendment Effective Date" shall mean May 10, 2002.
"Summary of Customer Data" shall mean that certain summary delivered
to the Lenders in the form of Exhibit K attached hereto.
b. Section 1.01 of the Credit Agreement is hereby amended by replacing the
definition of "Applicable Margin" in its entirety with the following definition:
"Applicable Margin" shall mean the percentage designated below based
on the Company's Total Debt Coverage Ratio for each Fiscal
Quarter-end, as indicated below:
For LIBOR Advances:
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Total Debt Applicable Applicable Applicable Applicable
Coverage Margin Margin Margin Margin
Ratio beginning beginning beginning beginning
May 10, 2002 July 1, 2002 October January 1,
through and through and 2002 through 2003 and
including June including and including thereafter
30, 2002 September 00, Xxxxxxxx 00, (XXXXX
(XXXXX 0000 (XXXXX 2002 (LIBOR Advance)
Advance) Advance) Advance)
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Less than 2.50:1.0 2.50% 2.50% 2.50% 2.50%
Greater than or equal to 2.75% 2.75% 2.75% 2.75%
2.50:1.0 and less than
3.00:1.0
Greater than or equal to 3.00% 3.00% 3.00% 3.00%
3.00:1.0 and less than
3.50:1.0
Greater than or equal to 3.25% 3.25% 3.25% 3.25%
3.50:1.0 and less than
4.00:1.0
Greater than or equal to 3.50% 3.75% 4.00% 4.25%
4.00:1.0 and less than
4.50:1.0
Greater than or equal to 3.75% 4.25% 4.50% 4.75%
4.50:1.0
For Base Rate Advances:
Total Debt Applicable Applicable Applicable Applicable
Coverage Margin Margin Margin Margin
Ratio beginning beginning beginning beginning
May 10, 2002 July 1, 2002 October 1, January 1,
through and through and 2002 through 2003 and
including June including and including thereafter
30, 2002 September 30, December 31, (Base Rate
(Base Rate 2002 (Base 2002 (Base Advance)
Advance) Rate Advance) Rate Advance)
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Less than 2.50:1.0 1.50% 1.50% 1.50% 1.50%
Greater than or equal to 1.75% 1.75% 1.75% 1.75%
2.50:1.0 and less than
3.00:1.0
Greater than or equal to 2.00% 2.00% 2.00% 2.00%
3.00:1.0 and less than
3.50:1.0
Greater than or equal to 2.25% 2.25% 2.25% 2.25%
3.50:1.0 and less than
4.00:1.0
Greater than or equal to 2.50% 2.75% 3.00% 3.25%
4.00:1.0 and less than
4.50:1.0
Greater than or equal to 2.75% 3.25% 3.50% 3.75%
4.50:1.0
Each change in the Applicable Margin resulting from a change in the
Total Debt Coverage Ratio shall be effective on the first Business
Day immediately following the date of delivery to the Administrative
Agent of the annual financial statements required under Section
5.03(a)(i), or the quarterly financial statements for each Fiscal
Quarter required under Section 5.03(a)(ii), as applicable, in each
case together with the Compliance Certificate required by Section
5.03(a)(ii), indicating such change. Notwithstanding the foregoing
and subject to Section 2.23, at any time during which the Company
has failed to deliver such financial statements and certificates
when required by Sections 5.03(a)(i) and 5.03(a)(ii), as applicable,
the Applicable Margin shall be increased by 2% per annum, until such
time as the delinquent financial statements are delivered, at which
time the Applicable Margin shall be reset as provided above.
c. Subsections (ii), (iii) and (iv) of Section 5.03 of the Credit Agreement are
hereby amended by replacing the existing Subsections (ii), (iii) and (iv) in
their entirety with the following:
"(ii) as soon as available and in any event within 45
days after the end of each Fiscal Quarter of the Company that is not
the end of a Fiscal Year, its quarterly unaudited financial
statements (which shall include a consolidated balance sheet and
related statements of income and cash flows), together with (A) a
certificate in the form of Exhibit H hereto (the "Compliance
Certificate") by the Chief Financial Officer of the Company (with
supporting details and calculations of financial covenants) stating
that (x) the financials were prepared in accordance with GAAP
(subject to customary year-end audit adjustments) and that the
covenants described in Article VII have been met and (y) whether a
Default or Event of Default exists (specifying the nature thereof
and intended response), (B) a comparison of the quarterly unaudited
financial statements (which shall include a consolidated balance
sheet and related statements of income and cash flows) to the
projections supplied to the Lenders by the Company pursuant to
Section 5.03(a)(iv) and an analysis as to the differences, if any,
between the unaudited financial statements (which shall include a
consolidated balance sheet and related statements of income and cash
flows) and such projections supplied to the Lenders by the Company
pursuant to Section 5.03(a)(iv) and (C) a Summary of Customer Data
for such Fiscal Quarter;
(iii) as soon as available and in any event within 45
days after the end of each month, the consolidated balance sheet and
related statements of income of the Company, which shall (w) include
the amount of Capital Expenditures for such month, (x) set forth in
comparative form the corresponding figures for such month in 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 in the projections
supplied to the Lenders by the Company pursuant to Section
5.03(a)(iv) and (z) set forth an analysis as to the differences, if
any, between the consolidated balance sheet and related statements
of income and such projections supplied to the Lenders by the
Company pursuant to Section 5.03(a)(iv); and
(iv) as soon as available and in any event not later
than forty-five (45) days after the end of each fiscal year of the
Company, financial projections with supporting assumptions for the
following fiscal year, in a form satisfactory to the Agents;
provided, however, for Fiscal Year 2002 and Fiscal Year 2003, the
projections attached as Exhibit J shall be the projections required
to be delivered pursuant to this Section 5.03(a)(iv) and the Company
shall have satisfied its requirements with respect to this Section
5.03(a)(iv) for such Fiscal Years."
d. 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 January 1, 2002 through and including March 31, 2002; (ii)
2.60 to 1.00 for the period beginning April 1, 2002 through and
including June 30, 2002; (iii) 2.65 to 1.00 for the period beginning
July 1, 2002 through and including September 30, 2002; (iv) 2.70 to
1.00 for the period beginning October 1, 2002 through and including
December 31, 2002; (v) 2.60 to 1.00 for the period beginning January
1, 2003 through and including March 31, 2003; and (vi) 2.00 to 1.00
thereafter."
e. Section 7.02 of the Credit Agreement is hereby amended by replacing such
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 January 1, 2002 through and including March 31, 2002; (ii)
4.60 to 1.00 for the period beginning April 1, 2002 through and
including June 30, 2002; (iii) 4.70 to 1.00 for the period beginning
July 1, 2002 through and including September 30, 2002; (iv) 4.75 to
1.00 for the period beginning October 1, 2002 through and including
December 31, 2002; (v) 4.50 to 1.00 for the period beginning January
1, 2003 through and including March 31, 2003; (vi) 3.25 to 1.00 for
the period beginning April 1, 2003 through and including June 30,
2003; and (vii) 3.00 to 1.00 thereafter."
f. 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 April 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
thereafter."
g. Section 7.04 of the Credit Agreement is hereby amended by replacing such
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) $19,700,000 for the
Fiscal Quarter ending June 30, 2002; (ii) $18,950,000 for the Fiscal
Quarter ending September 30, 2002; (iii) $18,800,000 for the Fiscal
Quarter ending December 31, 2002; (iv) $20,150,000 for the Fiscal
Quarter ending March 31, 2003; (v) $23,000,000 for the Fiscal
Quarter ending June 30, 2003; and (vi) $25,500,000 for the Fiscal
Quarter ending September 30, 2003; provided, however, EBITDA for the
Fiscal Quarter ended September 30, 2001, shall be increased by
adding non-recurring charges associated with the amortization of
remaining loan fees and any waiver fees and any termination cost
associated with the Company's then current interest rate protection
agreement during such Fiscal Quarter in the amount of $796,000."
h. Annex A to the Credit Agreement is hereby amended by replacing such
Annex A in its entirety with Annex A attached to this Amendment.
i. Schedule 4.07 and Schedule 4.21 to the Credit Agreement are hereby
amended by replacing such Schedule 4.07 and Schedule 4.21 in their entirety with
Schedule 4.07 and Schedule 4.21 attached to this Amendment.
j. Exhibit J to the Credit Agreement is hereby amended by replacing such
Exhibit J in its entirety with Exhibit J attached to this Amendment.
k. The Credit Agreement is hereby amended by adding the new Exhibit K
attached to this Amendment.
2. Waiver.
The Company has informed the Administrative Agent and the Lenders
that the Minimum EBITDA for the Fiscal Quarter ending March 31, 2002, was less
than $5,584,000 as required by Section 7.04 of the Credit Agreement. The Lenders
hereby waive any Default or Event of Default that have arisen as a result of the
failure of the Company to comply with Section 7.04 for the Fiscal Quarter ending
March 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 and conditions of the Credit Agreement.
3. Consent.
The Lenders consent to and approve Amendment No. 8 to the Senior
Subordinated Note Purchase Agreement ("Amendment No. 8"), dated as of May 10,
2002, 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 First Amendment Effective Date,
including reimbursement or payment of all out of pocket expenses (including
reasonable fees, charges and disbursements of King & Spalding, 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
First Amendment Effective Date, in form and substance satisfactory to the
Administrative Agent.
c. The Administrative Agent shall have received an executed copy of
Amendment No. 8, 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 in the amount of $300,000, 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. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAWS OF CONFLICTS), OF THE STATE OF NEW YORK
AND ALL APPLICAVBLE LAWS OF THE UNITED STATES OF AMERICA.
g. This Amendment shall be binding upon and inure to the benefit of
the parties hereto, their respective successors, successors-in-titles, and
assigns.
h. 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: Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
Attest: Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: General Counsel
SUNTRUST BANK
Individually and as Administrative Agent
By: Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX FINANCIAL, INC.
individually and as Syndication Agent
By: Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
BNP PARIBAS,
individually and as Documentation Agent
By: Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Director, Merchant Banking Group
By: Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Director
