EXHIBIT 10.13
AMENDMENT NO. 2 TO SENIOR SUBORDINATED NOTE PURCHASE AGREEMENT
AMENDMENT NO 2. as of dated June 30, 1998 to Senior Subordinated Note
Purchase Agreement dated as of October 31, 1997, as amended, between NuCo2 Inc.,
the Subsidiary Guarantors and the Investors (the "Agreement"). All capitalized
terms used herein and not otherwise defined shall have the meanings accorded
them in the Agreement.
WHEREAS, the Company, the Subsidiary Guarantors and the Investors have
entered into the Agreement; and
WHEREAS, the Company, the Subsidiary Guarantors and the Investors
desire to amend the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, the Subsidiary
Guarantors and the Investors agree as follows:
1. Section 8.09(a) of the Agreement is amended in its entirety to
read as follows:
"(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 the Closing Date
through June 30, 1998 1.25 to 1.00
From July 1, 1998
through December 31, 1998 1.40 to 1.00
From January 1, 1999
through March 31, 1999 1.50 to 1.00
From April 1, 1999
through June 30, 1999 1.65 to 1.00
From July 1, 1999
through September 30, 1999 1.80 to 1.00
From October 1, 1999
through December 31, 1999 2.00 to 1.00
From January 1, 2000
through March 31, 2000 2.25 to 1.00
From April 1, 2000
and at all times thereafter 2.50 to 1.00"
2. Section 8.09(b) of the Agreement is amended in its entirety to read
as follows:
"(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 the Closing Date
through September 30, 1998 7.00 to 1.00
From October 1, 1998
through December 31, 1998 6.50 to 1.00
From January 1, 1999
through March 31, 1999 5.50 to 1.00
From April 1, 1999
through June 30, 1999 5.00 to 1.00
From July 1, 1999
and at all times thereafter 4.50 to 1.00"
3. The Company represents and warrants to the Investors that (a) as of
the date hereof and after giving effect to the amendments provided in Sections 1
and 2 hereof, (i) the representations and warranties set forth in Article VI of
the 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 Senior Subordinated Note Purchase
Agreement as amended by this Amendment No. 2 except that (w) the lawsuit
described in Schedule 6.06(a) has been settled by the Company and is no longer
pending, (x) certain of the indebtedness listed in Schedule 6.12 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, referenced in Section 6.13 is
7,216,664 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 and (b) the amendment to certain of the Warrants as set forth in the
letter dated as of the date hereof from the Company to certain of the Holders
(as defined in the Warrant Agreement) have been duly authorized by all necessary
corporate action on the part of the Company and such letter has been duly
executed and delivered by the Company and such letter and such Warrants as
amended thereby constitute valid and legally binding obligations of the Company,
enforceable against it in accordance with their respective terms, except as
enforcement may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally, and by general principles of equity (regardless of
whether enforcement is sought at equity or in law).
4. Except as herein provided, the Agreement shall remain unchanged and
in full force and effect. This Amendment No. 2 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. 2 by signing any such counterpart. This Amendment No. 2 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. 2
to be duly executed and delivered as of the day and year first above written.
COMPANY:
NUCO2 INC.
By: /S/ XXXXX XXXXXXXX
----------------------
Name: Xxxxx Xxxxxxxx
Title: CFO
SUBSIDIARY GUARANTORS:
NUCO2 ACQUISITION CORP.
By: /S/ XXXXX XXXXXXXX
----------------------
Name: Xxxxx Xxxxxxxx
Title: Treasurer
XXXX COMPRESSED GASES, INC.
By: /S/ XXXXX XXXXXXXX
----------------------
Name: Xxxxx Xxxxxxxx
Title: Treasurer
INVESTORS:
CHASE EQUITY ASSOCIATES L.P.
By: Chase Capital Partners, its general partner
By: /S/ XXXX M.B. X'XXXXXX
--------------------------
Name: Xxxx M.B. X'Xxxxxx
Title: General Partner
DK ACQUISITION PARTNERS, L.P.
By: X.X. Xxxxxxxx & Co., its general partner
By: /S/ XXXXXX X. XXXXXXX, XX.
------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Partner
EMPIRE INSURANCE COMPANY, as executed on their
behalf by their Investment Manager, Cohanzick
Management, L.L.C.
By: ______________________________
Name:
Title:
ORIX USA CORPORATION
By: /S/ XXXXXXXX XXXXXXXX
-------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Executive Vice President
PAINEWEBBER HIGH INCOME FUND, a series of
PaineWebber Managed Investments Trust
By: ______________________________
Name:
