[EXECUTION COPY]
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of January [__], 2000 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");
each of the Subsidiaries of the Company appearing under the caption
"SUBSIDIARY GUARANTORS" on the signature pages hereto (each a "Subsidiary
Guarantor" and, collectively, the "Subsidiary Guarantors"; and, together with
the Company, the "Obligors"); and
each of the Investors appearing under the caption "INVESTORS" on the
signature pages hereto (each, an "Investor", and collectively, the "Investors").
WHEREAS, the Obligors and the Investors are party to a Senior
Subordinated Note Purchase Agreement dated as of October 31, 1997 (as heretofore
modified and supplemented and in effect on the date hereof, the "Note Purchase
Agreement"), pursuant to which the Company issued (or will issue) its 12% Senior
Subordinated Notes in an aggregate principal amount of up to $45,000,000 to the
Investors; 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. 4, 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 of the Note Purchase Agreement shall be amended in its
entirety to read as follows:
................"SECTION 8.09 Financial Covenants.
(a) Interest Coverage Ratio. The Company will not permit the Interest
Coverage Ratio to be less than the following respective ratios as at the last
day of each fiscal quarter during the following respective periods:
Period Ratio
From April 1, 1999
through March 31, 2000 1.25 to 1.00
From April 1, 2000
through June 30, 2000 1.50 to 1.00
From July 1, 2000
through September 30, 2000 1.65 to 1.00
From October 1, 2000
through December 31, 2000 1.75 to 1.00
From January 1, 2001
through March 31, 2001 2.00 to 1.00
From April 1, 2001
through June 30, 2001 2.25 to 1.00
From July 1, 2001
through September 30, 2001 2.40 to 1.00
From October 1, 2001
and at all times thereafter 2.50 to 1.00
(b) Total Net Funded Debt Coverage Ratio. The Company will not permit
the Total Net Funded Debt Coverage Ratio to exceed the following respective
ratios at any time during the following respective periods:
Period Ratio
From October 1, 1999
through December 31, 1999 5.50 to 1.00
From January 1, 2000
through March 31, 2000 5.00 to 1.00
From April 1, 2000
and at all times thereafter 4.50 to 1.00
(c) Minimum Net Worth. The Company shall at all times maintain
Consolidated Net Worth of not less than the sum of (a) $37,5000,000, (b) plus
50% of the cumulative Consolidated Net Income for each fiscal quarter ending on
or after December 31, 1997 (but specifically not including any Consolidated Net
Loss for any such fiscal quarter) plus (c) the cumulative net proceeds of all
equity offerings (if any) made by the Company for each fiscal quarter ending on
or after September 30, 1997."
Section 3. Representations and Warranties. The Company represents and
warrants to the Investors that: (i) 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.
4 (except that (x) certain of the indebtedness listed in Schedule 6.12 to the
Note Purchase Agreement has been paid off by the Company, (y) 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 7,216,997
and (z) the number of outstanding options granted under the Company's stock
option plans has changed); and (ii) no Default has occurred and is continuing.
Section 4. Conditions Precedent. As provided in Section 2 above, 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:
(a) Amendment No. 4. The execution and delivery of one or more
counterparts of this Amendment No. 4 by the Obligors 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. 4.
(b) Second Amendment to Senior Credit Agreement. Receipt by
the Investors of a copy of the Second Amendment to the Senior Credit Agreement
as executed by the parties thereto.
(c) Other Documents. Receipt by the Investors of such other
documents as any Investor or special New York counsel to the Investors 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. 4 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. 4 by signing any such counterpart. This
Amendment No. 4 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. 4
to be duly executed and delivered as of the day and year first above written.
NUCO2 INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Title: Chief Financial Officer
and Treasurer
SUBSIDIARY GUARANTORS
NUCO2 ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
XXXX COMPRESSED GASES, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
INVESTORS
CHASE EQUITY ASSOCIATES, LLC
(f/k/a Chase Equity Associates L.P.)
By Chase Capital Partners,
its Manager
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Title: General Partner
DK ACQUISITION PARTNERS, L.P.
By X.X. Xxxxxxxx & Co.,
its general partner
By_________________________
Title:
EMPIRE INSURANCE COMPANY,
as executed on their behalf
by their Investment Manager,
Cohanzick Management, L.L.C.
By_________________________
Title:
ORIX USA CORPORATION
By_________________________
Title:
PAINEWEBBER HIGH INCOME FUND,
a series of PaineWebber Managed Investments Trust
By_________________________
Title:
SUNTRUST BANKS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------
Title: Group Vice President