Second Amendment to Credit Agreement among NUCO2 Inc., Bank of America, N.A., and Lenders

 Exhibit 10.1 SECOND AMENDMENT TO CREDIT AGREEMENT THIS SECOND AMENDMENT (this "AMENDMENT") dated as of January 29, 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 to (b) Consolidated Fixed Charges for such period. (b) SECTION 7.06 of the Credit Agreement is hereby amended by adding the following subsection (f) thereto: (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, and (ii) after giving pro forma effect to any such payments, the Borrower shall be in pro forma compliance with SECTION 7.11.  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 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. 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/ Robert R. Galvin ---------------------------------------- Name: Robert R. Galvin Title: CFO ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent By: /s/ Michael Brashler ---------------------------------------- Name: Michael Brashler Title: Vice President LENDER: BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender By: /s/ Adam Kaplan ---------------------------------------- Name: Adam Kaplan Title: Senior Vice President