Amendment No. 10 to Note Purchase Agreement between NUCO2 Inc. and Investors

 EXHIBIT 10.2 AMENDMENT NO. 10 AMENDMENT NO. 10 dated as of February 7, 2003 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 amended, 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. 10, 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(a) of the Note Purchase Agreement shall be amended in its entirety to read as follows: AMENDMENT NO. 10 TO NOTE PURCHASE AGREEMENT  -2- "(a) INTEREST COVERAGE RATIO. The Company will not permit the Interest Coverage Ratio to be less than the following respective ratios as of the last day of each fiscal quarter during the following respective periods: Period Ratio ------ ----- From January 1, 2003 through March 31, 2003 1.75 to 1.00 From April 1, 2003 through June 30, 2003 1.95 to 1.00 From July 1, 2003 Through September 30, 2003 2.15 to 1.00 From October 1, 2003 and at all times thereafter 2.50 to 1.00" C. Clause (ii) of Section 8.10(a) of the Note Purchase Agreement shall be amended in its entirety to read as follows: "(ii) extend or shorten the scheduled maturity of any payment of any principal amount of the loans under the Senior Credit Agreement, except (x) altering or modifying the payment schedule of such loans so as to cause the average life to maturity of such loans to be not more than three years longer than the average life to maturity of such loans as of the date hereof or (y) extending the final maturity date of such loans by not more than three years; and" Section 3. 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. 10 (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) no Default has occurred and is continuing. Section 4. CONDITIONS PRECEDENT. 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: AMENDMENT NO. 10 TO NOTE PURCHASE AGREEMENT  -3- (a) AMENDMENT NO. 10. The execution and delivery of one or more counterparts of this Amendment No. 10 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. 10. (b) THIRD AMENDMENT AND WAIVER TO SENIOR CREDIT AGREEMENT. Receipt by the Investors of a copy of the Third Amendment and Waiver 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. 10 prior to 12:00 noon (New York City time) on February 7, 2003 of an amendment fee equal to 50 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 5. MISCELLANEOUS. Except as herein provided, the Note Purchase Agreement shall remain unchanged and in full force and effect. This Amendment No. 10 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. 10 by signing any such counterpart. This Amendment No. 10 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. 10 to be duly executed and delivered as of the day and year first above written. NUCO2 INC. By: /s/ Robert R. Galvin ----------------------------------------- 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 AMENDMENT NO. 10 TO NOTE PURCHASE AGREEMENT  -4- DK ACQUISITION PARTNERS, L.P. By M.H. Davidson & Co., its general partner By: Michael Leffell ----------------------------------------- Title: General Partner EMPIRE INSURANCE COMPANY, as executed on their behalf by their Investment Manager, Cohanzick Management, L.L.C. By: ----------------------------------------- Title: ORIX FINANCE CORP. I 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. Lenhardt, Jr. ---------------------------------------- Title: Chairman By: /s/ Charles R. Mathys ---------------------------------------- Title: Assistant Secretary AMENDMENT NO. 10 TO NOTE PURCHASE AGREEMENT  -5- SUNTRUST BANKS, INC. By: /s/ Jeffrey McNeil ---------------------------------------- Title: Director AMENDMENT NO. 10 TO NOTE PURCHASE AGREEMENT