EXECUTION COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of November 14, 1997, 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, including the Additional Investor (as
defined below), appearing under the caption "INVESTORS" on the
signature pages hereto (each, an "INVESTOR", and collectively, the
"INVESTORS").
The Obligors and the Investors (other than the Additional
Investor) 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 on October 31, 1997 its 12% Senior Subordinated Notes due 2004 in an
aggregate principal amount of $25,000,000 to such Investors. PaineWebber High
Income Fund, a series of PaineWebber Managed Investments Trust (the "ADDITIONAL
INVESTOR") desires to become an Investor party to the Note Purchase Agreement
and to purchase from the Company, and the Company desires to issue to the
Additional Investor, an additional 12% Senior Subordinated Note due 2004 in the
principal amount of $5,000,000 having the same terms as the Notes heretofore
issued by the Company under the Note Purchase Agreement. The Obligors and the
Investors (including the Additional Investor) wish to amend the Note Purchase
Agreement to add the Additional Investor as an Investor thereunder and to
provide for the issuance of such additional Notes and to make other
modifications to the Note Purchase Agreement. Accordingly, the parties hereto
hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in the Note Purchase Agreement are used herein as
defined therein.
Section 2. AMENDMENTS. 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:
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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. A new Section 2.06 is added to the Note Purchase Agreement
to read as follows:
"SECTION 2.06 ISSUANCE OF ADDITIONAL NOTE. Subject to
and upon the terms and conditions set forth in the immediately
succeeding sentence, PaineWebber High Income Fund, a series of
PaineWebber Managed Investments Trust (the "ADDITIONAL INVESTOR")
agrees to purchase from the Company, and the Company agrees to issue to
the Additional Investor, its 12% Senior Subordinated Note (the
"ADDITIONAL NOTE"), which Additional Note (i) shall be issued on
November 14, 1997 (or such later date as the Company and the Additional
Investor shall mutually agree, but not later than November 21, 1997),
(ii) shall be in a principal amount of $5,000,000 and purchased at par
by the Additional Investor and (iii) shall otherwise be in the form of
Exhibit A. The Additional Note shall constitute a Note, and the
Additional Investor shall be an Investor, for all purposes of this
Agreement. The issuance of the Additional Note to the Additional
Investor is subject, at the time of purchase, to the satisfaction of
the following conditions: (i) receipt by the Additional Investor of a
certificate of a senior officer of the Company, dated the date of such
purchase, to the effect, both immediately prior to the purchase of such
Additional Note and also after giving effect thereto and the intended
use thereof, set forth in clauses (a) and (b) of Section 5.02; (ii)
receipt by the Additional Investor of the Additional Note, duly
executed and completed for the Additional Investor; and (iii) the
execution and delivery of an amendment to the Warrant Agreement
satisfactory to the Additional Investor providing for the issuance of a
Warrant to the Additional Investor (or any Affiliate thereof) for the
purchase of 109,290 Stock Units (as defined in the Warrant Agreement)
and making certain other modifications thereto as mutually agreed by
the Company and the Investors (including the Additional Investor)."
C. Section 3.01(a) of the Note Purchase Agreement is amended
to insert a new sentence at the end thereof to read as follows:
"Notwithstanding anything in this Agreement to the contrary, no
prepayment may be made under this Section 3.01 if after giving effect
to such prepayment the aggregate principal
AMENDMENT NO. 1
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amount of the Notes then outstanding would be less than
$15,000,000, unless all of the Notes are prepaid in full."
D. A new Section 8.13 is added to the Note Purchase Agreement
to read as follows:
"SECTION 8.13 CREDIT RATING. Within the period of 18
months of the Closing Date, the Company will use all reasonable efforts
to obtain a credit rating from S&P, Xxxxx'x or Xxxx & Xxxxxx, Inc. or
any other nationally recognized credit rating agency acceptable to the
Required Investors, PROVIDED that the failure of the Company to obtain
such rating within such period shall not give rise to a Default
hereunder or entitle the Investors to exercise any remedy against the
Company hereunder or otherwise."
Section 3. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to the Investors that
the representations and warranties set forth in Article VI of the Note Purchase
Agreement 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. 1.
(b) The Additional Investor represents to the Company that the
representations set forth in Article IV of the Note Purchase Agreement are true
and complete with respect to the Additional Investor on the date of purchase of
the Additional Note as if made on and as of such date and as if each reference
in said Article IV to "this Agreement" (or words of similar import) referred to
the Note Purchase Agreement as amended by this Amendment No. 1.
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 execution and delivery
of one or more counterparts of this Amendment No. 1 by each of the parties
hereto.
Section 5. MISCELLANEOUS. Except as herein provided, the Note
Purchase Agreement shall remain unchanged and in full force and effect. This
Amendment No. 1 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. 1 by signing any such
counterpart. This Amendment No. 1 shall be governed by, and construed in
accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed and delivered as of the day and year first
above written.
NUCO2 INC.
By /S/ XXXXX XXXXXXXX
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Title: CFO
SUBSIDIARY GUARANTORS
NUCO2 ACQUISITION CORP.
By /S/ XXXXX XXXXXXXX
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Title: Secretary
XXXX COMPRESSED GASES, INC.
By /S/ XXXXX XXXXXXXX
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Title: Secretary
AMENDMENT XX. 0
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XXXXXXXXX
XXXXX EQUITY ASSOCIATES L.P..
By Chase Capital Partners,
its general partner
By/S/ XXXXXXX XXXXXX
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Title: General Partner
DK ACQUISITION PARTNERS, L.P.
By X.X. Xxxxxxxx & Co.,
its general partner
By/S/ XXXXXX X. XXXXXX
----------------------
Title: General Partner
EMPIRE INSURANCE COMPANY, as
executed on their behalf by their
Investment Manager, Cohanzick
Management , LLC
By/S/ XXXXX XXXXXXX
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Title: President
ORIX USA CORPORATION
By/S/ XXXXXXXX XXXXXX
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Title: Vice President
AMENDMENT NO. 1
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AMOUNT OF ADDITIONAL NOTE PAINEWEBBER HIGH INCOME FUND,
a series of PaineWebber
$5,000,000 Managed Investments Trust
By/S/ XXXX XXXXXXXX
-------------------------
Title: Xxxx Xxxxxxxx
Vice President and
Treasurer
Address for Notices:
PAINEWEBBER HIGH INCOME FUND,
series of PaineWebber Managed
Investments Trust
c/o Xxxxxxxx Xxxxxxxx Asset
Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxxx
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
AMENDMENT NO. 1
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