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

 Exhibit 10.1 FIRST AMENDMENT TO CREDIT AGREEMENT THIS FIRST AMENDMENT (this "AMENDMENT") dated as of March 24th, 2006 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 "Applicable Rate" and substituting in lieu thereof the following new definition, to read in its entirety as follows: "APPLICABLE RATE" means, from time to time, the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to SECTION 6.02(b): - ---------------------------------------------------------------------------------------------------------------------- APPLICABLE RATE - ---------------------------------------------------------------------------------------------------------------------- PRICING LEVEL CONSOLIDATED LEVERAGE RATIO COMMITMENT FEE EURODOLLAR RATE LOANS BASE RATE LOANS LETTERS OF CREDIT FEES - ---------------------------------------------------------------------------------------------------------------------- I Greater than or equal to 2.50x 0.400% 2.000% 0.500% II Less than 2.50x but greater than 0.350% 1.750% 0.250% or equal to 2.00x  III Less than 2.00x but greater than 0.300% 1.500% 0.000% or equal to 1.50x IV Less than 1.50x but greater than 0.250% 1.250% 0.000% or equal to 0.50x V Less than 0.50x 0.200% 1.000% 0.000% - ---------------------------------------------------------------------------------------------------------------------- Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to SECTION 6.02(b); PROVIDED, HOWEVER, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level I shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall continue at such Pricing Level I until such time as an appropriate Compliance Certificate is provided, at which time the Pricing Level shall be reset based upon the Consolidated Leverage Ratio for the most recently ended fiscal period reflected in such Compliance Certificate. The Applicable Rate in effect from the First Amendment Effective Date through the first Business Day following receipt by the Administrative Agent of a Compliance Certificate of the Borrower with respect to the fiscal period ending March 31, 2006, shall be determined based upon Level IV." (b) SECTION 1.01 of the Credit Agreement ("Defined Terms") is hereby amended by adding the following definition, to be inserted in alphabetical order: "FIRST AMENDMENT EFFECTIVE DATE" means March 24th, 2006. 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 2  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. [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/ Robert R. Galvin ------------------------------------ Name: Robert R. Galvin ---------------------------------- Title: CFO --------------------------------- [SIGNATURE PAGES CONTINUE]  ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent By: /s/ Ronaldo Naval ------------------------------------- Name: Ronaldo Naval ----------------------------------- Title: Vice President ---------------------------------- [SIGNATURE PAGES CONTINUE]  LENDER: BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender By: /s/ Brian K. Keeney ------------------------------------- Name: Brian K. Keeney ----------------------------------- Title: Senior Vice President ----------------------------------