Second Amendment and Waiver to Second Amended and Restated Revolving Credit Agreement by and among NUCO2 Inc., SunTrust Bank, and Lenders

 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"), HELLER 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/Gregg F. Stewart ---------------------- Name: Gregg F. Stewart Title: Chief Financial Officer Attest: /s/Eric M. Wechsler --------------------------- Name: Eric M. Wechsler Title: General Counsel SUNTRUST BANK Individually and as Administrative Agent By: /s/Barbara Baltar --------------------- Name: Barbara Baltar Title: Vice President HELLER FINANCIAL, INC. individually and as Syndication Agent By: /s/Luis Acosta ------------------ Name: Luis Acosta Title: Senior Vice President BNP PARIBAS, individually and as Documentation Agent By: /s/Ross A. Catlin --------------------- Name: Ross A. Catlin Title: Director By: /s/Cecile Scherer --------------------- Name: Cecile Scherer Title: Director Merchant Banking Group