EXECUTION COPY
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ dated as of May 4, 1999 to the Warrant
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 Initial Holders, including the Additional Initial
Holders (as defined below), appearing under the caption "INITIAL
HOLDERS" on the signature pages hereto (each, an "Initial Holder", and
collectively, the "Initial Holders").
WHEREAS, the Company and the Initial Holders (other than
SunTrust Banks, Inc. ("SunTrust")) are party to a Warrant Agreement dated as of
October 31, 1997 (as heretofore modified and supplemented and in effect on the
date hereof, the "Warrant Agreement");
WHEREAS, pursuant to the Warrant Agreement, in connection with
the issuance by the Company of $30,000,000 aggregate principal amount of Senior
Subordinated Notes (the "2004 Notes") and as an inducement for the purchase by
the Initial Holders (other than SunTrust and Nationsbanc ▇▇▇▇▇▇▇▇▇▇ Securities,
Inc.) of such $30,000,000 aggregate principal amount of the Notes, the Company
issued Warrants to such Initial Holders providing for the purchase of shares of
Common Stock of the Company;
WHEREAS, in connection with the issuance by the Company of up
to an additional $15,000,000 aggregate principal amount of Senior Subordinated
Notes due 2005 (the "2005 Notes", and together with the 2004 Notes, the "Notes")
to each of Chase Equity Associates L.P. ("Chase Capital") and SunTrust (each, a
"2005 Note Initial Holder") and as an inducement for the purchase by the 2005
Note Initial Holders of up to such $ 15,00O,000 aggregate principal amount of
the 2005 Notes, the Company has agreed to issue Warrants to the 2005 Note
Initial Holders providing for the purchase of shares of Common Stock of the
Company;
WHEREAS, SunTrust desires to become an Initial Holder party to
the Warrant Agreement and each 2005 Note Initial Holder desires to purchase the
2005 Notes from the Company, and the Company desires to issue to the 2005 Note
Initial Holders, a Warrant having the same terms as the Warrants heretofore
issued by the Company and as amended (including the amendments thereto effected
by this Amendment No. 2) under the Warrant Agreement (as amended hereby). The
Company and the Initial Holders (including the 2005 Note Initial Holders) wish
to amend the Warrant Agreement to add SunTrust as an Initial Holder thereunder
and to provide for the issuance of such additional Warrants and to make other
modifications to the Warrant Agreement and the Warrants heretofore issued and
outstanding thereunder.
Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 2, terms defined in the Warrant Agreement are used herein as
defined therein.
Section 2. Amendments to Warrant Agreement. Subject to the
satisfaction of the conditions precedent specified in Section 5 below, but
effective as of the date hereof, the parties to the Warrant Agreement agree that
the Warrant Agreement shall be amended as follows:
A. References in the Warrant Agreement to "this Agreement"
(and indirect references such as "hereunder", "hereby", "herein" and "hereof")
shall be deemed to be references to the Warrant Agreement as amended hereby.
B. Section 1.01 of the Warrant Agreement shall be amended by
adding the following new definitions (to the extent not already included in said
Section 1.01) and inserting the same in the appropriate alphabetical locations
and amending the following definitions (to the extent already included in said
Section 1.01) to read in their entirety as follows:
"Amendment No. 2" shall mean Amendment No. 2 dated as
of May 4, 1999 to this Agreement.
"First 2005 Note Closing Date" shall have the meaning
assigned to such term in the Senior Subordinated Note Purchase
Agreement.
"Second 2005 Note Closing Date" shall have the
meaning assigned to such term in the Senior Subordinated Note Purchase
Agreement.
"Senior Subordinated Note Purchase Agreement" shall
mean the Senior Subordinated Note Purchase Agreement dated as of
October 31, 1997 between the Company, the subsidiary guarantors party
thereto and the investors party thereto, as amended and in effect from
time to time.
"2005 Note Initial Holder" shall have the meaning
assigned to such term in Section 2.07 and Section 2.08 hereof.
C. A new Section 2.08 is added to the Warrant Agreement to
read as follows:
"SECTION 2.08 Issuance of Additional Warrants. (a) Subject to
and upon the conditions set forth in this Agreement, the Company shall
issue to each of Chase Equity Associates L.P. ("Chase Capital") and
SunTrust Banks, Inc. ("SunTrust" and, together with Chase Capital, the
"2005 Note Initial Holders"), on the First 2005 Note Closing Date and
for no cash consideration, a Warrant (the "2005 Note Warrants") in the
form of Annex 1 to this Agreement covering such number of Stock Units
as is equal to the
percentage of the issued and outstanding shares of Common Stock on a
fully diluted basis on the date of issuance of such 2005 Note Warrant
as is specified opposite the name of such 2005 Note Initial Holder in
Part A of Schedule 1 to Amendment No. 2. The number of shares of Common
Stock comprising each Stock Unit covered by the 2005 Note Warrants
issued under this Agreement shall be subject to adjustment as provided
in Sections 6 and 7 hereof. Each 2005 Note Warrant shall constitute a
Warrant, and each 2005 Note Initial Holder shall be an Initial Holder,
for all purposes of this Agreement. On the First 2005 Note Closing
Date, the Company shall deliver to each 2005 Note initial Holder a
single certificate for the Warrant to be acquired by such Initial
Holder hereunder, registered in the name of such Initial Holder.
(b) Subject to and upon the terms and conditions set
forth in the this Agreement, on the Second 2005 Note Closing Date, the
Company shall (i) issue to each 2005 Note Initial Holder (or its
transferees, as the case may be) Warrants in the form of Annex 1 to
this Agreement covering such number of Stock Units as is equal to the
percentage of the issued and outstanding shares of the Common Stock on
a fully diluted basis on the date of issuance of such Warrants as is
specified opposite the name of such 2005 Note Initial Holder in Part B
of Schedule I to Amendment No. 2, (ii) deliver to each 2005 Note
Initial Holder a single certificate for the Warrants to be acquired by
such 2005 Note Initial Holder hereunder on such date, registered in the
name of such 2005 Note Initial Holder, except that, if such 2005 Note
Initial Holder shall notify the Company in writing prior to such
issuance that it desires certificates for Warrants to be issued in
other denominations or registered in the name or names of any Person or
Persons referred to in Section 5.01 (a)(i) or (ii) hereof or any
nominee or nominees for its or their benefit, then the certificates for
Warrants shall be issued to such 2005 Note Initial Holder in the
denominations and registered in the name or names specified in such
notice, and (iii) deliver to each 2005 Note Initial Holder a legal
opinion from counsel to the Company in form and substance reasonably
satisfactory to each 2005 Note Initial Holder. Each 2005 Note Warrant
shall constitute a Warrant, and each 2005 Note Initial Holder shall be
an Initial Holder, for all purposes of this Agreement."
D. Schedules 1 and 2 to the Warrant Agreement are hereby
amended to read as set forth in Schedules 1 and 2, respectively, to this
Amendment No. 2.
E. The form of Warrant attached as Annex 1 to the Warrant
Agreement shall be amended by deleting the amount "$16.40" in the first
paragraph of such form and adding in lieu thereof the amount "$6.65."
Section 3. Amendments to Warrants. Subject to the satisfaction
of the conditions precedent specified in Section 5 below, but effective as of
the date hereof, the Company agrees for the benefit of each of holders of the
Warrants heretofore issued by the Company under the Warrant Agreement, as
amended and outstanding thereunder on the date hereof (the "Existing Warrants"),
that each of the Existing Warrants (other than Warrant No. 5 to purchase 30,000
Stock Units held by NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, Inc. and Warrant No. 7 to
purchase 43,715 Stock Units held by DK Acquisition Partners, L.P.) shall be
amended by deleting the amount "$ 12.40" in the first paragraph thereof and
adding in lieu thereof the amount $6.65. "
Section 4. Representations and Warranties.
(a) The Company represents and warrants to the Initial Holders
that (i) the representations and warranties set forth in Section 3 of the
Warrant 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 Section 3
to "this Agreement" (or words of similar import) referred to the Warrant
Agreement as amended by this Amendment No. 2 and (ii) no default has occurred
and is continuing.
(b) Each 2005 Note Initial Holder represents to the Company
that the representations set forth in Section 2.03 of the Warrant Agreement are
true and complete with respect to such 2005 Note Initial Holder on the date of
each issuance of the 2005 Note Warrants as if made on and as of such date and as
if each reference in said Section 2.03 to "this Agreement" (or words of similar
import) referred to the Warrant Agreement as amended by this Amendment No. 2.
Section 5. Conditions Precedent. As provided in Section 2
above, the amendments to the Warrant 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. 2 by the Company and Holders of at
least 66-2/3% of the Restricted Warrants.
Section 6. Miscellaneous. Except as herein provided, the
Warrant 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.
NUCO2 INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer/
Treasurer
INITIAL HOLDERS
CHASE EQUITY ASSOCIATES L.P.
By Chase Capital Partners,
its general partner
By_____________________________________
Title:
ORIX USA CORPORATION
By_____________________________________
Title:
EMPIRE INSURANCE COMPANY,
as executed on their behalf by
their Investment Manager,
Cohanzick Management, L.L.C.
By_____________________________________
Title:
DK ACQUISITION PARTNERS, L.P.
By ▇.▇. ▇▇▇▇▇▇▇▇ & Co.,
its general partner
By_____________________________________
Title:
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES,
INC.
By_____________________________________
Title:
PAINEWEBBER HIGH INCOME FOND,
a series of PaineWebber Managed
Investments Trust
By_____________________________________
Title:
SUNTRUST BANKS, INC.
By_____________________________________
Title:
Schedule 1
PART A: First 2005 Note Closing Date Percentage
CHASE EQUITY ASSOCIATES L.P. 3.90%
SUNTRUST BANKS, INC. 0.60%
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Total 4.50%
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PART B: Second 2005 Note Closing Date
CHASE EQUITY ASSOCIATES L.P. 1.95%
SUNTRUST BANKS, INC. 0.30%
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Total 2.25%
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