EXHIBIT 10.2
AMENDMENT XX. 00
XXXXXXXXX XX. 00 dated as of February 7, 2003 to the Note Purchase
Agreement referred to below, between:
NUCO2 INC., a corporation duly organized and validly existing under
the laws of the State of Florida (the "COMPANY"); and
each of the Investors appearing under the caption "INVESTORS" on the
signature pages hereto (each, an "INVESTOR", and collectively, the
"INVESTORS").
WHEREAS, the Company and the Investors are party to a Senior
Subordinated Note Purchase Agreement dated as of October 31, 1997 (as heretofore
amended, modified and supplemented and in effect on the date hereof, the "NOTE
PURCHASE AGREEMENT"), pursuant to which the Company has issued to the Investors
its 12% Senior Subordinated Notes in an aggregate principal amount of
$40,000,000 outstanding on the date hereof; and
WHEREAS, the parties to the Note Purchase Agreement wish to amend
the Note Purchase Agreement to make certain modifications thereto;
Accordingly, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 10, terms defined in the Note Purchase Agreement are used herein
as defined therein.
Section 2. AMENDMENTS TO NOTE PURCHASE AGREEMENT. Subject to the
satisfaction of the conditions precedent specified in Section 4 below, but
effective as of the date hereof, the Note Purchase Agreement shall be amended as
follows:
A. References in the Note Purchase Agreement to "this Agreement"
(and indirect references such as "hereunder", "hereby", "herein" and "hereof")
shall be deemed to be references to the Note Purchase Agreement as amended
hereby.
B. Section 8.09(a) of the Note Purchase Agreement shall be amended
in its entirety to read as follows:
AMENDMENT NO. 10 TO NOTE PURCHASE AGREEMENT
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"(a) INTEREST COVERAGE RATIO. The Company will not permit the
Interest Coverage Ratio to be less than the following respective ratios as
of the last day of each fiscal quarter during the following respective
periods:
Period Ratio
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From January 1, 2003
through March 31, 2003 1.75 to 1.00
From April 1, 2003
through June 30, 2003 1.95 to 1.00
From July 1, 2003
Through September 30, 2003 2.15 to 1.00
From October 1, 2003
and at all times thereafter 2.50 to 1.00"
C. Clause (ii) of Section 8.10(a) of the Note Purchase Agreement
shall be amended in its entirety to read as follows:
"(ii) extend or shorten the scheduled maturity of any payment of any
principal amount of the loans under the Senior Credit Agreement, except (x)
altering or modifying the payment schedule of such loans so as to cause the
average life to maturity of such loans to be not more than three years longer
than the average life to maturity of such loans as of the date hereof or (y)
extending the final maturity date of such loans by not more than three years;
and"
Section 3. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Investors that: (a) the representations and warranties set
forth in Article VI of the Note Purchase Agreement (as amended hereby) are true
and complete on the date hereof as if made on and as of the date hereof and as
if each reference in said Article VI to "this Agreement" (or words of similar
import) referred to the Note Purchase Agreement as amended by this Amendment No.
10 (except that (i) certain of the Indebtedness listed in Schedule 6.12 to the
Note Purchase Agreement has been paid by the Company, (ii) the number of validly
issued and outstanding shares of common stock, par value $0.001 per share,
referred to in Section 6.13 of the Note Purchase Agreement is 10,633,405 and
(iii) the number of outstanding options granted under the Company's stock option
plans has changed; and (b) no Default has occurred and is continuing.
Section 4. CONDITIONS PRECEDENT. The amendments to the Note Purchase
Agreement set forth in said Section 2 shall become effective, as of the date
hereof, upon the satisfaction of the following conditions:
AMENDMENT XX. 00 XX XXXX XXXXXXXX XXXXXXXXX
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(x) AMENDMENT NO. 10. The execution and delivery of one or more
counterparts of this Amendment No. 10 by the Company and the Required
Investors, and receipt by the Investors of evidence that the lenders party
to the Senior Credit Agreement shall have approved this Amendment No. 10.
(b) THIRD AMENDMENT AND WAIVER TO SENIOR CREDIT AGREEMENT. Receipt
by the Investors of a copy of the Third Amendment and Waiver to Senior
Credit Agreement in substantially the form heretofore delivered to each of
the Investors, as executed by the parties thereto.
(c) AMENDMENT FEE. Receipt by each Investor that has executed and
delivered a counterpart of this Amendment No. 10 prior to 12:00 noon (New
York City time) on February 7, 2003 of an amendment fee equal to 50 basis
points on the principal amount of the Notes or Notes held by such
Investor.
(d) OTHER DOCUMENTS. Receipt by the Investors of such other
documents as any Investor may reasonably request.
Section 5. MISCELLANEOUS. Except as herein provided, the Note
Purchase Agreement shall remain unchanged and in full force and effect. This
Amendment No. 10 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 10 by signing any such
counterpart. This Amendment No. 10 shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 10 to be duly executed and delivered as of the day and year first above
written.
NUCO2 INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Chief Financial Officer
INVESTORS
X.X. XXXXXX PARTNERS (BHCA), L.P.
By JPMP Master Fund Manager, L.P.,
its General Partner
By JPMP Capital Corp.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Partner
AMENDMENT XX. 00 XX XXXX XXXXXXXX XXXXXXXXX
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XX ACQUISITION PARTNERS, L.P.
By X.X. Xxxxxxxx & Co.,
its general partner
By: Xxxxxxx Xxxxxxx
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Title: General Partner
EMPIRE INSURANCE COMPANY,
as executed on their behalf by
their Investment Manager,
Cohanzick Management, L.L.C.
By:
-----------------------------------------
Title:
ORIX FINANCE CORP. I
By: /s/ Xxxxxxxx X.X. Xxxxx, Xx.
-----------------------------------------
Title: Authorized Representative
UBS HIGH YIELD FUND
UBS Global Asset Management (New York) Inc.
As Investment Manager for the UBS HIGH YIELD
FUND
By: /s/ Xxxxxxxx X. Xxxxxxxx, Xx.
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Title: Chairman
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Assistant Secretary
AMENDMENT NO. 10 TO NOTE PURCHASE AGREEMENT
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SUNTRUST BANKS, INC.
By: /s/ Xxxxxxx XxXxxx
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Title: Director
AMENDMENT NO. 10 TO NOTE PURCHASE AGREEMENT
