Exhibit 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT (this "AMENDMENT") dated as of March 23, 2007 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 "Consolidated Fixed
Charge Coverage Ratio" and substituting in lieu thereof the following new
definition, to read in its entirety as follows:
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, as of any date of
determination, the ratio of (a) Consolidated EBITDAR minus taxes paid or
payable in cash, minus dividends and other distributions paid in cash,
minus amounts paid to repurchase, redeem or otherwise acquire shares of
the Borrower's Capital Stock for the period of the four fiscal quarters
most recently ended (PROVIDED, HOWEVER, that share repurchases made
pursuant to and in accordance with SECTION 7.06(f) shall be excluded for
purposes of calculating this ratio) TO (b) Consolidated Fixed Charges for
such period.
(b) SECTION 7.06 of the Credit Agreement is hereby amended by deleting
subsection (f) thereto and substituting in lieu thereof the following new
subsection (f), to read in its entirety as follows:
(f) the Borrower may repurchase, redeem or otherwise acquire shares
of its Capital Stock from its stockholders; PROVIDED, that (i) no Default
or Event of Default shall exist or result therefrom; (ii) after giving pro
forma effect to any such payments, the Borrower shall be in pro forma
compliance with SECTION 7.11; and (iii) the aggregate amount of all such
share repurchases, redemptions, or acquisitions shall not exceed
$50,000,000.
(c) SECTION 7.11 of the Credit Agreement ("Financial Covenants") is hereby
amended by deleting subsection (a) ("Consolidated Net Worth") and substituting
in lieu thereof the following new subsection (a), to read in its entirety as
follows:
(a) CONSOLIDATED NET WORTH. Commencing with the fiscal quarter
ending June 20, 2005, permit Consolidated Net Worth at any time to be less
than the sum of (i) 85% of the Borrower's Consolidated Net Worth as of
June 30, 2005, (ii) an amount equal to 75% of the Consolidated Net Income
earned in each full fiscal quarter ending after June 30, 2005 (with no
deduction for a net loss in any such fiscal quarter) and (iii) an amount
equal to 100% of the aggregate increases in Shareholder's Equity of the
Borrower and its Subsidiaries after the date hereof by reason of the
issuance and sale of Equity Interests of the Borrower or any Subsidiary
(other than issuances to the Borrower or a wholly-owned Subsidiary),
including upon any conversion of debt securities of the Borrower into such
Equity Interests, LESS an amount equal to any decrease in Shareholder's
Equity resulting directly from the repurchase of shares pursuant to and in
accordance with SECTION 7.06(F).
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 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
2
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]
3
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
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
LENDER:
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
