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

 EXHIBIT 10.1 THIRD AMENDMENT AND WAIVER TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT THIS THIRD AMENDMENT AND WAIVER TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this "AMENDMENT") made as of February 7, 2003, 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 and that certain Second Amendment and Waiver to Second Amended and Restated Revolving Credit Agreement dated as of September 27, 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 Administrative Agent, 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, the Administrative Agent, the Issuing Bank and the Swing Line Lender 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 1.01 of the Credit Agreement is hereby amended by (i) deleting the definitions of "Letter of Credit Fee", "Letter of Credit Obligations", "Letter of Credit Subcommitment" and "Letters of Credit" in their entirety, and (ii) replacing the definitions of "Capital Expenditures", "Loan Documents", "Obligations", "Revolving Loan Commitment", "Total Debt" and "Total Commitments" with the following: "CAPITAL EXPENDITURES" shall mean, for any period, expenditures made by the Company and its Subsidiaries to acquire or construct property, plant and equipment (including renewals, improvements and replacements, but excluding repairs and customer account commissions paid) during such period computed in accordance with GAAP, but in each case net of any loss from the disposal of, or write-off or reserve against fixed assets during such period of previously capitalized costs to the extent such loss, write-off or reserve reflects charges against income. "LOAN DOCUMENTS" shall mean this Agreement, each Exhibit and Schedule to this Agreement, the Notes, the Guaranty Documents, the Security Documents, and each other document, instrument, certificate and opinion executed and delivered in connection with the foregoing, each as amended, restated, supplemented or otherwise modified from time to time as provided in SECTION 10.02. "OBLIGATIONS" shall mean all amounts owing to any Agent or any Lender pursuant to the terms of this Agreement or any other Loan Document, including without limitation, all Advances (including all principal and interest payments due thereunder), Fees, expenses, indemnification and reimbursement payments, indebtedness, liabilities, and obligations of the Company and its Subsidiaries, covenants and duties of the Company to the Lenders and the Agents of every kind, nature and description, direct or indirect, absolute or contingent, due or not due, in contract or tort, liquidated or unliquidated, arising under this Agreement or under the other Loan Documents, by operation of law or otherwise, now existing or hereafter arising or whether or not for the payment of money or the performance or the nonperformance of any act, including, but not limited to, all debts, liabilities and obligations owing by the Company to others which the Lenders may have obtained by assignment or otherwise, and all damages which the Company may owe to the Lenders and the Agents by reason of any breach by the Company of any representation, warranty, covenant, agreement or other provision of this Agreement or of any other Loan Document. "REVOLVING LOAN COMMITMENTS" shall mean, for any Lender at any time, the revolving credit facility severally established by such Lender in favor of the Company pursuant to SECTION 2.01, as the same may be increased or decreased from time to time as a result of any reduction thereof pursuant to SECTION 2.12, any assignment thereof pursuant to SECTION 10.08, or any amendment thereof pursuant to SECTION 10.02.  "TOTAL DEBT" shall mean, at any time, all then currently outstanding obligations, liabilities and indebtedness of the Company and its Subsidiaries on a consolidated basis of the types described in the definition of INDEBTEDNESS (other than as described in subsection (x) thereof), including, but not limited to, all Revolving Loans, and Swing Line Loans under the Loan Documents. "TOTAL COMMITMENTS" shall mean, at any time, the sum of the Revolving Loan Commitments, and in the case of the Swing Line Lender, the Swing Line Subcommitment. b. Section 1.01 of the Credit Agreement is hereby further amended by adding the following new definitions in appropriate alphabetical order: "BUDGET" shall mean that certain budget, dated as of February 5, 2003, delivered to the Administrative Agent and attached hereto as EXHIBIT L. "FIXED CHARGE COVERAGE RATIO" shall mean, as of any date of determination, the ratio of (a) the difference of (1) EBITDA for the four preceding Fiscal Quarters MINUS (2) Capital Expenditures for the four preceding Fiscal Quarters, to (b) Interest Expense for the four preceding Fiscal Quarters. "MAXIMUM PERMITTED REVOLVER OUTSTANDING AMOUNT" shall mean, at any time, the lesser of (a) the Total Commitments then in effect, MINUS $2,000,000; and (b) the maximum principal balance that could have been outstanding under the Revolving Loan Commitment (including all outstanding Revolving Loans and Swingline Loans) as of the end of the most recent Fiscal Quarter for which the Company has delivered financial statements to the Administrative Agent pursuant to Section 5.03, such that the Company would have had outstanding the maximum Total Debt and Senior Debt, as the case may be, that would have allowed the Company to remain in compliance with both the Total Debt Coverage Ratio and the Senior Debt Coverage Ratio, respectively, as of such date MINUS $2,000,000. c. Section 2.01 of the Credit Agreement is hereby amended by replacing Section 2.01 in its entirety with the following: "SECTION 2.01 REVOLVING LOAN COMMITMENTS AND REVOLVING NOTES. (a) Subject to and upon the terms and conditions set forth in this Agreement, each of the Lenders severally establishes until April 29, 2004 (April 29, 2004, is hereinafter referred to as the "COMMITMENT TERMINATION DATE") a revolving credit facility in favor of the Company in aggregate principal at any one time outstanding not to  exceed the sum set forth opposite such Lender's name below, as the same may be reduced from time to time pursuant to the terms hereof: SunTrust Bank, as $15,000,000.00 33 1/3% successor by merger to SunTrust Bank, South Florida, National Association Heller Financial, Inc. $15,000,000.00 33 1/3% BNP Paribas $15,000,000.00 33 1/3% TOTAL: $45,000,000.00 100.00% PROVIDED, HOWEVER, that in no event may the aggregate principal amount of all outstanding Revolving Loans and Swing Line Loans outstanding exceed at any time the Maximum Permitted Revolver Outstanding Amount. Within the foregoing limits, the Company may borrow, repay and reborrow under the terms of this Agreement; PROVIDED, HOWEVER, that (A) the aggregate principal amount of each Borrowing shall not be less than $500,000 and shall be in integral multiples of $100,000, (B) all of the Company's representations and warranties are true and correct on and as of the date of each Borrowing, (C) the Company may neither borrow nor reborrow should there exist a Default or an Event of Default, or such would result from the Borrowing, and (D) the aggregate outstanding amount of Advances, after giving effect to each Borrowing, shall not exceed the Maximum Permitted Revolver Outstanding Amount. At no time shall the number of Borrowings outstanding under this Article II exceed seven; PROVIDED that, for the purpose of determining the number of Borrowings outstanding, all Borrowings consisting of Base Rate Advances shall be considered as one Borrowing. Borrowings under the Commitments shall be made through simultaneous Advances by the Lenders, and the amount of each such Borrowing shall be prorated among such Lenders based on the percentages set forth above. All Advances by each Lender shall be evidenced by a single Revolving Note payable to such Lender substantially in the form of EXHIBIT A attached hereto. Each Revolving Note shall be dated as of the Closing Date, shall be payable to the order of the respective Lender in a principal amount equal to the amount set forth opposite such Lender's name above, shall bear interest as provided for in this Agreement and shall mature on the Commitment Termination Date or sooner should the principal and accrued interest thereon be declared immediately due and payable as provided for herein. No Lender shall have any obligation to advance funds in excess of an amount equal to the percentage set forth opposite such Lender's name above multiplied by the Total Commitments. (b) [Intentionally Omitted]  (c) [Intentionally Omitted] (d) [Intentionally Omitted]" d. Sections 2.04, 2.05, 2.06, 2.07, 2.08 and 2.09 of the Credit Agreement are hereby amended by replacing Sections 2.04, 2.05, 2.06, 2.07, 2.08 and 2.09 in their entirety with the following: "SECTION 2.04 [Intentionally Omitted] SECTION 2.05 [Intentionally Omitted] SECTION 2.06 [Intentionally Omitted] SECTION 2.07 [Intentionally Omitted] SECTION 2.08 [Intentionally Omitted] SECTION 2.09 [Intentionally Omitted]" e. Section 2.11 of the Credit Agreement is hereby amended by replacing Section 2.11(a) in its entirety with the following: "(a) If the sum of the (i) aggregate outstanding principal amount of the Revolving Loans, and (ii) aggregate outstanding principal amount of the Swing Line Loans exceed at any time the Maximum Permitted Revolver Outstanding Amount, as reduced pursuant to SECTION 2.12 or otherwise, the Company shall immediately repay the Swing Line Loans, or Revolving Loans by an amount equal to such excess. Each prepayment of Revolving Loans shall be applied first to Base Rate Advances to the full extent thereof before application to LIBOR Advances." f. Section 2.16 of the Credit Agreement is hereby amended by replacing subsection 2.16(c) in its entirety with the following: "(c) [Intentionally Omitted]" g. Section 2.22 of the Credit Agreement is hereby amended by replacing subsection 2.22(a) in its entirety with the following: "(a) The Fees and all payments of principal of, or interest on the Notes shall be made in immediately available funds free and clear of any defenses, set-offs, counterclaims or withholdings or deductions for taxes to the Administrative Agent at its principal office in New York, New York, for the accounts of the respective Lenders. All such  payments shall be made not later than 1:00 p.m. (New York, New York time) and funds received after that hour shall be deemed to have been received by the Administrative Agent on the next Business Day. Payments to the Administrative Agent shall, as to the Company, constitute payment to the applicable Lenders hereunder, other than Swing Line Loans." h. Section 2.23 of the Credit Agreement is hereby amended by replacing Section 2.23 in its entirety with the following: "SECTION 2.23 DEFAULT RATE OF INTEREST. Upon the occurrence and during the continuance of an Event of Default, to the extent permitted by law, the principal amount of all outstanding Swingline Loans and Revolving Loans and all other unpaid amounts, hereunder shall, on such date and thereafter, bear interest at the then applicable interest rate plus an additional two percent (2.0%) per annum until payment in full, PROVIDED, THAT, for any LIBOR Advance, at the end of the applicable Interest Period, interest shall accrue at the Base Rate PLUS the Applicable Margin PLUS two percent (2.0%) per annum. Interest accruing pursuant to this SECTION 2.23 will be due and payable upon demand." i. Section 3.02 of the Credit Agreement is hereby amended by replacing Section 3.02 in its entirety with the following: "SECTION 3.02 CONDITIONS PRECEDENT TO EACH ADVANCE. At the time of the making by the Lenders of each Advance hereunder (including the initial Advances) (before as well as after giving effect to such Advances and the proposed use of the proceeds thereof), the following statements shall be true: (a) The representations and warranties contained in Article IV hereof are true and correct in all material respects on and as of the date of such Borrowing as though made on and as of such date, except insofar as such representations and warranties speak only as of a prior date or reflect transactions and events after the Closing Date, as permitted by the Loan Documents; (b) No Default or Event of Default exists or would result from such Borrowing or from the application of the proceeds therefrom; (d) Since the date of the most recent consolidated financial statements of the Company described in SECTION 4.14 or delivered to the Lenders pursuant to SECTION 5.02, nothing shall have occurred which has had or could reasonably be expected to have a Materially Adverse Effect; (d) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of the Company, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to  prohibit or restrict the ownership or operation of any portion of the business or assets of the Company or any of its Subsidiaries, or to compel the Company or any of its Subsidiaries to dispose of or hold separate all or any portion of its businesses or assets, where such portion or portions of such business(es) or assets, as the case may be, constitute a material portion of the total businesses or assets of the Company or its Subsidiaries; (e) The Advances to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Administrative Agent or any Lender in a violation of, any Applicable Law; (f) each Notice of Borrowing given by the Company in accordance with SECTION 2.02(a) hereof and the acceptance by the Company of the proceeds of any Borrowing shall constitute a representation and warranty by the Company, made as of the time of the making of such Borrowing that the conditions specified in SECTION 3.02(a) have been fulfilled as of such time unless a notice to the contrary specifically captioned "Disclosure Statement" is received by each of the Lenders from the Company prior to 5:00 p.m. (New York, New York time) on the Business Day immediately preceding the date of the making of such Borrowing. To the extent that the Required Lenders agree to make such Borrowing after receipt of a Disclosure Statement in accordance with the preceding sentence, the representations and warranties pursuant to the preceding sentence will be deemed made as modified by the contents of such Disclosure Statement and repeated, as so modified, as at the time of the making of such Borrowing. Any such modification shall be effective only for the occasion on which the Lenders elect to make an Advance on such Borrowing, and unless expressly agreed by the Required Lenders in writing to the contrary in accordance with SECTION 10.02, shall not be deemed a waiver or modification of any condition to the making of any future Borrowing." j. Section 3.03 of the Credit Agreement is hereby amended by replacing Section 3.03 in its entirety with the following: "SECTION 3.03 EFFECT OF AMENDMENT AND RESTATEMENT. Upon the effectiveness of this Agreement pursuant to Section 3.01, from and after the Closing Date: (a) the terms and conditions of the Original Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety, but only with respect to the rights, duties and obligations among Company, the Lenders and the Administrative Agent accruing from and after the Closing Date; (b) the New Lenders shall be deemed to have become Lenders hereunder and under all other Loan Documents, and the Lenders party to the Original Credit Agreement (the "Original Lenders") shall be deemed to have assigned, and the New Lenders shall be deemed to have accepted assignment of, a portion of the "Loans" and a portion of  the "Swing Line Loans" outstanding under the Original Credit Agreement such that after giving effect thereto, all "Loans" and all participations in "Swing Line Loans" outstanding under the Original Credit Agreement and now outstanding under this Agreement are held by the Lenders in amounts equal to the Lenders' Pro Rata Shares of the respective Commitments, (c) this Agreement shall not in any way release or impair the rights, duties, Obligations or Liens created pursuant to the Original Credit Agreement or any other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Closing Date and except as modified hereby or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, Obligations and Liens are assumed, ratified and affirmed by Company; (d) all indemnification obligations of the Company under the Original Credit Agreement and any other Loan Documents (as defined therein) shall survive the execution and delivery of this Agreement and shall continue in full force and effect for the benefit of the Original Lenders, the Agent, and any other Person indemnified under the Original Credit Agreement or any other Loan Document (as defined therein) at any time prior to the Closing Date, (e) the Obligations incurred under the Original Credit Agreement shall, to the extent outstanding on the Closing Date, continue outstanding under this Agreement and shall not be deemed to be paid, released, discharged or otherwise satisfied by the execution of this Agreement, and this Agreement shall not constitute a refinancing, substitution or novation of such Obligations or any of the other rights, duties and obligations of the parties hereunder; (f) the execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of the Original Lenders or the Agent (as defined therein) under the Original Credit Agreement, nor constitute a waiver of any covenant, agreement or obligation under the Original Credit Agreement, except to the extent that any such covenant, agreement or obligation is no longer set forth herein or is modified hereby; (g) any and all references to the Original Credit Agreement in each and every Collateral Document and all other Loan Documents shall, without further action of the parties, be deemed a reference to the Original Credit Agreement, as amended and restated by this Agreement, and as this Agreement shall be further amended, restated, supplemented or otherwise modified from time to time." k. Section 4.24 of the Credit Agreement is hereby amended by replacing Section 4.24 in its entirety with the following: "SECTION 4.24 SUBORDINATED DEBT. As of the Closing Date, the Company has delivered to the Administrative Agent a complete and correct copy of the Senior Subordinated Note Purchase Agreement and the Subordinated Notes (including all schedules, exhibits, amendments,  supplements, modifications, assignments and all other documents delivered pursuant thereto or in connection therewith). The Company has the corporate power and authority to incur the Indebtedness evidenced by the Subordinated Notes. The subordination provisions contained in the Senior Subordinated Note Purchase Agreement are enforceable against the holders of the Subordinated Notes by Administrative Agent and Lenders. All Obligations, including the Obligations to pay principal of and interest on the Loans, constitute senior Indebtedness entitled to the benefits of the subordination provisions contained in the Senior Subordinated Note Purchase Agreement. The principal of and interest on the Notes and all other Obligations will constitute "senior debt" as that or any similar term is or may be used in any other instrument evidencing or applicable to any other Subordinated Debt. The Company acknowledges that the Administrative Agent and each Lender are entering into this Agreement in reliance upon the subordination provisions of the Subordinated Notes and this SECTION 4.24." l. Section 5.03 of the Credit Agreement is hereby amended by replacing subsection 5.03(a)(iii) in its entirety with the following: "(iii) as soon as available and in any event within 30 days after the end of each month, (A) the consolidated balance sheet, cash flow and related statements of income of the Company, which shall (w) include the amount of Capital Expenditures for such month, with a breakdown by type, (x) set forth in comparative form the corresponding figures for such month from the projections supplied to the Lenders by the Company pursuant to Section 5.03(a)(iv), (y) set forth in comparative form the corresponding figures for the Fiscal Year to date from the projections supplied to the Lenders by the Company pursuant to Section 5.03(a)(iv) and (z) set forth a management discussion and analysis as to the differences, if any, between the consolidated balance sheet, cash flow and related statements of income and such projections supplied to the Lenders by the Company pursuant to Section 5.03(a)(iv), together with (B) the total number of accounts lost during the four preceding Fiscal Quarters, broken out on a monthly basis and into the following categories: "Company Initiated", "Customer Bankruptcies", and Customer Initiated", (C) a comparison of the actual savings resulting from the Company's cost savings plan as described in the Budget versus the projected savings identified in the Budget, and (D) a report detailing driver turnover and route completion, substantially in the form of Schedule 5.03 attached hereto; and" m. Section 6.15 of the Credit Agreement is hereby amended by replacing Section 6.15 in its entirety with the following: "SECTION 6.15 CAPITAL EXPENDITURES. The Company shall not, and shall not permit any of its Subsidiaries to, make Capital Expenditures  during any Fiscal Quarter in excess of the amount listed for such Fiscal Quarter on ANNEX A attached hereto." n. 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 October 1, 2002 through and including March 31, 2003; (ii) 2.25 to 1.00 for the period beginning April 1, 2003 through and including September 30, 2003; (iii) 2.00 to 1.00 for the period beginning October 1, 2003 through and including December 31, 2003, and (iv) 1.75 to 1.00 for the period beginning January 1, 2004 and thereafter." o. Section 7.02 of the Credit Agreement is hereby amended by replacing 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 October 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; (iii) 3.75 to 1.00 for the period beginning October 1, 2003 through and including December 31, 2003, (iv) 3.50 to 1.00 for the period beginning January 1, 2004 and thereafter." p. Section 7.03 of the Credit Agreement is hereby amended by replacing such Section 7.03 in its entirety with the following: "SECTION 7.03 DEBT SERVICE COVERAGE RATIO. The Company shall not permit the Debt Service Coverage Ratio as of the last day of any Fiscal Quarter of the Company to be less than (i) 1.20 to 1.00 for the period beginning October 1, 2002 through and including December 31, 2002; (ii) 1.25 to 1.00 for the period beginning January 1, 2003 through and including March 31, 2003; and (iii) 1.30 to 1.00 for the period beginning April 1, 2003 and thereafter." q. Section 7.04 of the Credit Agreement is hereby amended by replacing 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) $17,000,000 for the Fiscal Quarter ending March 31, 2003; (ii) $18,500,000 for the  Fiscal Quarter ending June 30, 2003; (iii) $20,500,000 for the Fiscal Quarter ending September 30, 2003; (iv) $23,500,000 for the Fiscal Quarter ending December 31, 2003; and (v) $25,500,000 for the Fiscal Quarter ending March 31, 2004 and thereafter; PROVIDED, HOWEVER, 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." r. Article VII of the Credit Agreement is hereby amended by adding the following new Section 7.05: "SECTION 7.05 FIXED CHARGE COVERAGE RATIO. As of the last day of each Fiscal Quarter, commencing with the Fiscal Quarter ending March 31, 2003, the Fixed Charge Coverage Ratio shall be not less than (i) 0.75 to 1.00 for the Fiscal Quarter ending March 31, 2003; (ii) 0.83 to 1.00 for the Fiscal Quarter ending June 30, 2003; (iii) 1.05 to 1.00 for the Fiscal Quarter ending September 30, 2003; (iv) 1.20 to 1.00 for the Fiscal Quarter ending December 31, 2003; and (v) 1.30 to 1.00 for the Fiscal Quarter ending March 31, 2004 and thereafter." s. Article VII of the Credit Agreement is hereby amended by adding the following new Section 7.06: "SECTION 7.06 MINIMUM QUARTERLY EBITDA. The Company shall maintain at all times, calculated as of the last day of each Fiscal Quarter, Minimum EBITDA for the three preceding fiscal months ending on the last day of such Fiscal Quarter of not less than (i) $4,850,000 for the Fiscal Quarter ending March 31, 2003; (ii) $5,850,000 for the Fiscal Quarter ending June 30, 2003; (iii) $5,600,000 for the Fiscal Quarter ending September 30, 2003; (iv) $6,250,000 for the Fiscal Quarter ending December 31, 2003; and (v) $6,450,000 for the Fiscal Quarter ending March 31, 2004 and thereafter." t. Section 9.01 of the Credit Agreement is hereby amended by replacing subsection 9.01(b) in its entirety with the following: "(b) [Intentionally Omitted]" u. ANNEX A to the Credit Agreement is hereby amended by replacing ANNEX A in its entirety with the ANNEX A attached hereto. v. The Credit Agreement is hereby amended by adding a new EXHIBIT L in the form of EXHIBIT L attached hereto.  2. WAIVER. The Company has informed the Administrative Agent and the Lenders that as of December 31, 2002, the Company failed to comply with the requirements under Section 7.04 of the Credit Agreement (Minimum EBITDA). The Lenders hereby waive the Event of Default that has arisen as a result of the failure of the Company to comply with Section 7.04 as of the Fiscal Quarter ending December 31, 2002. This waiver is limited solely to the matter 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. 10 to the Senior Subordinated Note Purchase Agreement ("AMENDMENT NO. 10"), dated as of February 7, 2003, 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 LLP, 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. 10, 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 equal to 67.5 basis points on the Total Commitments, 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. Company hereby reaffirms its covenant in Section 5.06 of the Credit Agreement to permit the Administrative Agent, any Lender, or any person designated by the Administrative Agent or any Lender to visit and inspect any of its or its Subsidiaries' properties and to deliver to the Administrative Agent and the Lenders any audits of the Company's properties, corporate books and financial records, in form and substance satisfactory to the Administrative Agent and the Lenders; PROVIDED, FURTHER, that should a third party be retained for any or all inspections or field audits, such third party shall be selected by the Administrative Agent in its sole discretion, and Administrative Agent shall not be bound by any previous agreements or understandings to use particular appraisers or inspectors. In addition, Company reaffirms its obligation to pay all reasonable fees and expenses relating to any inspections or field audits conducted by the Administrative Agent, any Lender or third party auditors. g. The Company hereby releases, acquits, and forever discharges each of the Lenders, the Administrative Agent, the Swing Line Lender and the Issuing Bank, and each and every past and present subsidiary, affiliate, stockholder, officer, director, agent, servant, employee, representative, and attorney of the Lenders, the Administrative Agent, the Swing Line Lender and the Issuing Bank, from any and all claims, causes of action, suits, debts, liens, obligations, liabilities, demands, losses, costs and expenses (including attorneys' fees) of any kind, character, or nature whatsoever, known or unknown, fixed or contingent, which Company may have or claim to have now or which may hereafter arise out of or connected with any act of commission or omission of any Lender, the Administrative Agent, Swing Line Lender or the Issuing Bank, existing or occurring prior to the date of this Amendment or any instrument executed prior to the date of this Amendment. h. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED 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. i. This Amendment shall be binding upon and inure to the benefit of the parties hereto, their respective successors, successors-in-titles, and assigns. j. 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/ Robert R. Galvin ----------------------------------- Name: Robert R. Galvin Title: Chief Financial Officer SUNTRUST BANK INDIVIDUALLY AND AS ADMINISTRATIVE AGENT By: /s/ Karen C. Copeland ----------------------------------- Name: Karen C. Copeland 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/ Richard Cushing ----------------------------------- Name: Richard Cushing Title: Director