EXHIBIT 10.5
SECOND AMENDMENT AND WAIVER TO SECOND AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT AND WAIVER TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this "Amendment") made as of September 27, 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"), ▇▇▇▇▇▇ 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 (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 2.01 of the Credit Agreement is hereby amended by
replacing September 30, 2003 with November 17, 2003 in the definition of
"Commitment Termination Date."
b. 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 July 1, 2002 through and including March 31, 2003; and
(ii) 2.25 to 1.00 thereafter."
c. 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 July 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 and (iii) 3.75 to 1.00 thereafter."
d. 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) $18,950,000 for the
Fiscal Quarter ending September 30, 2002; (ii) $18,800,000 for the
Fiscal Quarter ending December 31, 2002; (iii) $20,150,000 for the
Fiscal Quarter ending March 31, 2003; (iv) $20,000,000 for the
Fiscal Quarter ending June 30, 2003; and (v) $21,500,000 for the
Fiscal Quarter ending September 30, 2003 and thereafter; provided,
however, (a) 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, any waiver fees and any
termination cost associated with the Company's then current interest
rate protection agreement during such Fiscal Quarter and the charges
taken by the Company during such quarter in connection with the
write-down of certain assets in the amount of $1,093,000 , (b)
EBITDA for the Fiscal Quarter ended December 31, 2001, shall be
increased by adding the charges taken by the Company during such
quarter in connection with the write-down of certain assets in the
amount of $109,000, (c) EBITDA for the Fiscal Quarter ended March
31, 2002, shall be increased by adding the charges taken by the
Company during such quarter in connection with the write-down of
certain assets in the amount of $295,000 and (d) 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."
2. WAIVER.
The Company has informed the Administrative Agent and the Lenders
that as of June 30, 2002, the Company failed to comply with the requirements
under Sections 7.01, 7.02, 7.03 and 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 Sections 7.01, 7.02, 7.03 and 7.04 as of
June 30, 2002. This waiver is limited solely to the matters 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. 9 to the Senior
Subordinated Note Purchase Agreement ("Amendment No. 9"), dated as of September
27, 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 date hereof, 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 date
hereof, in form and substance satisfactory to the Administrative Agent.
c. The Administrative Agent shall have received an executed copy of
Amendment No. 9, 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 $150,000, 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 APPLICABLE 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:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
Attest: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: General Counsel
SUNTRUST BANK
Individually and as Administrative Agent
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ FINANCIAL, INC.
individually and as Syndication Agent
By: /s/▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
BNP PARIBAS,
individually and as Documentation Agent
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Merchant Banking Group