EXHIBIT 10.5
AMENDMENT NO. 1
AMENDMENT
NO.
1
dated
as of July 9,
2004 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 August 25, 2003 (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 16.3%
Senior
Subordinated
Notes in an
aggregate
principal
amount
of
$30,000,000
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. 1, 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 3.01 of the Note Purchase
Agreement
shall be amended in
its entirety to read as follows:
"SECTION 3.01 PREPAYMENTS.
(a)
Subject to Article XI, the
Company
may,
at its option,
upon
notice as provided in this Section 3.01, prepay all or, from time
to time,
part of the Notes
(including any PIK Interest
Amounts) at any time prior
to
February
25,
2005 at a
price
equal
to the sum of (i)
100% of the
principal
amount of the Notes being prepaid,
(ii) all accrued and unpaid
interest on such principal
amount to but excluding the
prepayment
date,
(iii) an amount
equal to the
interest
that would
have
accrued on such
principal
amount for the period from and including the prepayment date to
but excluding
February 25, 2005 and (iv) a prepayment premium equal to 6%
of that
portion of the
Original
Principal
Amount being so prepaid (the
amounts
under
clauses
(iii)
and
(iv)
collectively,
the
"Make-Whole
Amount").
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
-2-
(b) The Company may, at its option,
upon notice as provided
below,
prepay all or,
from time to time,
part of the Notes
(including
any PIK
Interest
Amounts) at any time from and after February 25, 2005 at a price
equal to the sum of (i) the principal
amount of all PIK Interest
Amounts
being prepaid and (ii) the applicable percentage for the applicable
period
listed
below of that
portion
of the
Original
Principal
Amount
being
prepaid,
in each case,
together with interest
accrued and unpaid on the
Notes (including any PIK Interest Amounts),
or part thereof,
as the case
may be, to the prepayment date:
PERIOD
PRICE
------
-----
From
February
25, 2005 through
August 24, 2006
106%
From
August 25, 2006
through
August 24, 2007
103%
Thereafter
100%.
(c)
Notwithstanding
clauses
(a) or (b)
above,
in the event of a
Change
in
Control
prior
to
August
24,
2006 in
which
the net
cash
consideration
received (or receivable) by the Company or its shareholders
shall be at
least
equal
(or
equivalent)
to
$22.00
per
share of the
Company's
authorized
common stock,
the Company,
in connection with the
consummation
of such
Change in
Control,
may at its
option
prepay all
outstanding Notes at a price equal to 103% of the principal amount
of each
Note, in each case, together with interest accrued and unpaid on
each Note
to the prepayment date.
(d) The Company
will give each
holder of the Notes
notice of each
optional
prepayment
under
paragraph (a) or (b) of this Section 3.01 not
less than 20 days prior to the date fixed for such prepayment,
specifyi
