Amendment No. 9 to Note Purchase Agreement between NUCO2 Inc. and Investors

 EXHIBIT 10.15 Amendment No. 9 to Note Purchase Agreement Amendment No. 9 to Note Purchase Agreement AMENDMENT NO. 9 AMENDMENT NO. 9 dated as of September 27, 2002 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 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. 9, 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 5 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. The definition of "EBITDA" in Section 1.01 of the Note Purchase Agreement shall be amended in its entirety to read as follows: "EBITDA" shall mean, for the Company and its Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net Income (Loss) for such period plus (b) to the extent deducted in determining Consolidated Net Income (Loss) for such period, (i) Interest Expense, (ii) income tax expense, and (iii) depreciation and amortization, determined on a consolidated basis in accordance with GAAP in each case for such period; provided, however, (a) there shall be added to EBITDA for the quarter ending September 30, 2001,  so long as such quarter is used in the EBITDA calculation for the relevant period, any non-recurring charges associated with the amortization of remaining loan fees, any waiver fees and any termination cost associated with the Company's current interest rate protection agreement during such quarter and the charges taken by the Company during such quarter in connection with the write-down of certain assets in the amount of $1,897,000 , (b) there shall be added to EBITDA for the quarter ending December 31, 2001, so long as such quarter is used in the EBITDA calculation for the relevant period, the charges taken by the Company during such quarter in connection with the write-down of certain assets in the amount of $109,000, (c) there shall be added to EBITDA for the quarter ending March 31, 2002, so long as such quarter is used in the EBITDA calculation for the relevant period, the charges taken by the Company during such quarter in connection with the write-down of certain assets in the amount of $295,000 and (d) there shall be added to EBITDA for the quarter ending June 30, 2002, so long as such quarter is used in the EBITDA calculation for the relevant period, the costs and charges taken by the Company during such quarter in connection with the write-down of certain assets, an increase in the reserve for accounts receivable and costs associated with various personnel and consulting actions in the amount of $4,904,000. C. Section 8.09(b) of the Note Purchase Agreement shall be 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 July 1, 2002 through March 31, 2003 4.95 to 1.00 From April 1, 2003 Through September 30, 2003 4.45 to 1.00 From October 1, 2003 and at all times thereafter 4.25 to 1.00" Section 3. WAIVER. Subject to the satisfaction of the conditions specified in Section 5 below, but with effect on and after the ------ date hereof, the Investors hereby agree to waive any Default that has occurred and is continuing on the date hereof as a result of the Company's failure to comply as of June 30, 2002 with the requirements under Sections 8.09(a) and 8.09(b) of the Note Purchase Agreement (as in effect immediately prior to the effectiveness of this Amendment No. 9). Section 4. 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. 9 (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) (after giving effect to the waiver under Section 3 above) no Default has occurred and is continuing. Section 5. CONDITIONS PRECEDENT. The amendments to the Note Purchase Agreement set forth in said Section 2, and the waiver under the Note Purchase Agreement set forth in said Section 3, shall become effective, as of the date hereof, upon the satisfaction of the following conditions: (a) AMENDMENT NO. 9. The execution and delivery of one or more counterparts of this Amendment No. 9 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. 9. (b) SECOND AMENDMENT TO SENIOR CREDIT AGREEMENT. Receipt by the Investors of a copy of the Second Amendment 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. 9 prior to 12:00 noon (New York City time) on September 27, 2002 of an amendment fee equal to 25 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 6. MISCELLANEOUS. Except as herein provided, the Note Purchase Agreement shall remain unchanged and in full force and effect. This Amendment No. 9 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. 9 by signing any such counterpart. This Amendment No. 9 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. 9 to be duly executed and delivered as of the day and year first above written. NUCO2 INC. By: /s/Gregg F. Stewart ----------------------- Title: Chief Financial Officer  INVESTORS --------- J.P. MORGAN PARTNERS (BHCA), L.P. By JPMP Master Fund Manager, L.P., its General Partner By JPMP Capital Corp., its General Partner By: /s/Richard D. Waters ------------------------ Title: Partner DK ACQUISITION PARTNERS, L.P. By M.H. Davidson & Co., its general partner By: /s/Thomas L. Kempner, Jr. ----------------------------- Title: General Partner EMPIRE INSURANCE COMPANY, as executed on their behalf by their Investment Manager, Cohanzick Management, L.L.C. By: Title:  ORIX USA CORPORATION By: /s/Sheppard H.C. Davis, Jr. --------------------------- 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/Benjamin F. Leinhardt, Jr. ----------------------------- Title: Chairman By: /s/Charles R. Mathys ------------------------ Title: Assistant Secretary SUNTRUST BANKS, INC. By: /s/Martin Ted Hayden ------------------------ Title: Senior Vice President