EXHIBIT 10.10
WAIVER AND AMENDMENT NO. 1 TO
REVOLVING CREDIT AGREEMENT
THIS WAIVER AND AMENDMENT NO. 1 TO REVOLVING CREDIT
AGREEMENT (this "Amendment"), dated as of August 25, 1998, by and among NUCO2
INC., a Florida corporation (the "Company"), SUNTRUST BANK, SOUTH FLORIDA,
NATIONAL ASSOCIATION, a national banking association ("SunTrust"), and any other
banks or other lending institutions that are or will become parties to the
Credit Agreement, defined below (collectively, the "Lenders"), and SUNTRUST
BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION, as agent (in such capacity, the
"Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Lenders and the Agent are
parties to that certain Revolving Credit Agreement, dated as of October 31, 1997
(the "Credit Agreement"; defined terms used herein without definition shall have
the meaning ascribed to such terms in the Credit Agreement);
WHEREAS, the Company has requested, and the Lenders
have agreed, to (i) waive compliance with certain financial and other covenants
set forth in the Credit Agreement and (ii) amend certain requirements with
respect to future fiscal periods with respect to certain of such financial
covenants, all as more particularly set forth below; and
WHEREAS, the parties wish to amend the Credit Agreement
to reflect this agreement;
NOW, THEREFORE, for and in consideration of the mutual
covenants contained herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. Subject to
the satisfaction of the conditions precedent set forth in SECTION 3 hereof, and
effective as of the Effective Date (as hereinafter defined), the Credit
Agreement is hereby amended as follows:
1. Section 7.02 of the Credit Agreement is hereby
amended by deleting such section in its entirety and substituting therefor the
following:
"SECTION 7.02. FIXED CHARGE COVERAGE RATIO. The Company
shall not permit the Fixed Charge Coverage Ratio as of the last day
of each fiscal quarter of the Company shown below to be less than
the corresponding ratio shown below:
QUARTER ENDED RATIO
June 30, 1998 0.80 to 1.00
September 30, 1998 0.80 to 1.00
December 31, 1998 0.85 to 1.00
March 31, 1999 0.95 to 1.00
June 30, 1999 1.05 to 1.00
September 30, 1999, and thereafter 1.25 to 1.00
SECTION 2. WAIVER. The Company has informed the Agent
and the Required Lenders that the Company may not have been and may not in the
future be in compliance with certain provisions of the Credit Agreement.
Therefore, the Required Lenders hereby waive any Default or Event of Default
caused by any such failure of the Company to comply with the following provision
of the Credit Agreement for the fiscal period indicated below:
2. Section 7.02 (Fixed Charge Coverage Ratio) for the
Company's fiscal quarter ending on March 31, 1998.
SECTION 3. CONDITIONS OF EFFECTIVENESS. This Amendment
shall become effective as of March 31, 1998 (the "EFFECTIVE DATE") on the first
day when this Amendment shall have been executed by the Company and the Required
Lenders and delivered to the Agent.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY. The Company, without limiting the representations and warranties
provided in the Credit Agreement, represents and warrants to the Lenders and the
Agent as follows:
3. The execution, delivery and performance by the
Company of this Amendment are within the Company's corporate powers, have been
duly authorized by all necessary corporate action (including any necessary
shareholder action) and do not and will not (a) violate any provision of any
law, rule or regulation, any judgment, order or ruling of any court or
governmental agency, the articles of incorporation or by-laws of the Company or
any indenture, agreement or other instrument to which the Company is a party or
by which the Company or any of its properties is bound or (b) be in conflict
with, result in a breach of, or constitute with notice or lapse of time or both
a default under any such indenture, agreement or other instrument.
4. This Amendment constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms.
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5. No Default or Event of Default has occurred and is
continuing as of the Effective Date or the date hereof (after giving effect to
the waivers set forth herein).
SECTION 5. SURVIVAL. Each of the foregoing
representations and warranties and each of the representations and warranties
made in the Credit Agreement shall be made at and as of the Effective Date. Each
of the foregoing representations and warranties shall constitute a
representation and warranty of the Company under the Credit Agreement, and it
shall be an Event of Default if any such representation and warranty shall prove
to have been incorrect or false in any material respect at the time when made.
Each of the representations and warranties made under the Credit Agreement
(including those made herein) shall survive and not be waived by the execution
and delivery of this Amendment or any investigation by the Lenders or the Agent.
SECTION 6. NO WAIVER, ETC. The Company hereby agrees
that except as expressly set forth in Section 2 above, nothing herein shall
constitute a waiver by the Lenders of any Default or Event of Default, whether
known or unknown, which may exist under the Credit Agreement. The Company hereby
further agrees that no action, inaction or agreement by the Lenders, including
without limitation, any indulgence, waiver, consent or agreement altering the
provisions of the Credit Agreement which may have occurred with respect to the
non-payment of any obligation during the term of the Credit Agreement or any
portion thereof, or any other matter relating to the Credit Agreement, shall
require or imply any future indulgence, waiver, or agreement by the Lenders. In
addition, the Company acknowledges and agrees that it has no knowledge of any
defenses, counterclaims, offsets or objections in its favor against any Lender
with regard to any of the obligations due under the terms of the Credit
Agreement as of the date of this Amendment.
SECTION 7. AFFIRMATION OF COVENANTS. The Company hereby
affirms and restates as of the date hereof all covenants set forth in the Credit
Agreement, as amended hereby, and such covenants are incorporated by reference
herein as if set forth herein directly.
SECTION 8. RATIFICATION OF CREDIT AGREEMENT. Except as
expressly amended herein, all terms, covenants and conditions of the Credit
Agreement and the other Loan Documents shall remain in full force and effect,
and the parties hereto do expressly ratify and confirm the Credit Agreement as
amended herein. All future references to the Credit Agreement shall be deemed to
refer to the Credit Agreement as amended hereby.
SECTION 9. BINDING NATURE. This Amendment shall be
binding upon and inure to the benefit of the parties hereto, their respective
heirs, successors, successors-in-titles, and assigns.
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SECTION 10. COSTS, EXPENSES AND TAXES. The Company
agrees to pay on demand all reasonable costs and expenses of the Agent in
connection with the preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Agent with respect thereto and with respect to advising the Agent as to
its rights and responsibilities hereunder and thereunder. In addition, the
Company shall pay any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this Amendment and the
other instruments and documents to be delivered hereunder, and agrees to save
the Agent and each Lender harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes.
SECTION 11. GOVERNING LAW. This Amendment shall be
governed by, and construed in accordance with, the laws of the State of Florida.
SECTION 12. ENTIRE UNDERSTANDING. 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.
SECTION 13. COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts and may be delivered by telecopier. Each counterpart so
executed and delivered shall be deemed an original and all of which taken
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed
this Amendment through their authorized officers as of the date first above
written.
NUCO2 INC., A FLORIDA CORPORATION
By: /S/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: C.O.O.
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XXXXXXXX XXXX, XXXXX XXXXXXX,
NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS AGENT
FOR THE LENDERS
By: /S/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
CREDITANSTALT CORPORATE FINANCE,
INC., LENDER
By: /S/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Senior Associate
By: /S/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: EVP
NATIONAL CITY BANK OF KENTUCKY,
LENDER
By: /S/ XXXX XXXXXXXXX
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Name: Xxxx Xxxxxxxxx
Title:Vice President
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