Exhibit 4.10


 





 


NUCO2 FUNDING LLC,

NUCO2 LLC,

NUCO2 IP LLC and


NUCO2 SUPPLY LLC

each as Co-Issuer,


 


and


 


U.S. Bank National Association,

as Trustee, Administrative Agent and Securities Intermediary


 




 


SUPPLEMENTAL INDENTURE


 


 


dated as of September 14, 2010


 


 


to


 


 


BASE INDENTURE


 


 


dated as of May 28, 2008


 


and


 


SERIES 2008-1 SUPPLEMENT


 


 


dated as of May 28, 2008


 





 

















 


SUPPLEMENTAL
INDENTURE, dated as of September 14, 2010 (this “Supplemental Indenture”),
by and among NUCO2 FUNDING LLC, a Delaware limited liability
company (the “Master Issuer”), NUCO2 LLC, a
Delaware limited liability company (the “Contract Holder”), NUCO2 IP LLC, a Delaware limited liability company
(the “IP Holder”), NUCO2 SUPPLY LLC, a
Delaware limited liability company (the “Equipment Holder” and, together
with the Master Issuer, the Contract Holder and the IP Holder, collectively,
the “Co-Issuers”, and each, a “Co-Issuer), and U.S. Bank National
Association, a national banking association, as trustee (in such capacity, the “Trustee”),
as administrative agent (in such capacity, the “Administrative Agent”)
and as securities intermediary (in such capacity, the “Securities
Intermediary”), to the Base Indenture, dated as of May 28, 2008, by and
among the Co-Issuers and the Trustee (as amended, modified or supplemented from
time to time, exclusive of this Supplemental Indenture and the Series 2008-1
Supplement defined herein, the “Base Indenture”) and to the Series 2008-1
Supplement, dated as of May 28, 2008, to the Base Indenture by and among the Co-Issuers
and the Trustee (as amended, modified or supplemented from time to time,
exclusive of this Supplemental Indenture, the “Series 2008-1 Supplement”).


 


PRELIMINARY STATEMENT


 


WHEREAS,
on May 28, 2008, the Co-Issuers and the Trustee entered into the Base Indenture
and the Series 2008-1 Supplement in order to issue $280,000,000 principal
amount of the Co-Issuers’ 7.25% Fixed Rate Series 2008-1 Senior Notes, Class A-1,
$30,000,000 principal amount of the Co-Issuers’ Series 2008-1 Variable Funding
Senior Notes, Class A-2,  $20,000,000
principal amount of the Co-Issuers’ Series 2008-1 Variable Funding Senior
Notes, Class A-3, and $75,000,000 principal amount of the Co-Issuers’ 9.75%
Fixed Rate Series 2008-1 Subordinated Notes, Class B-1;


 


WHEREAS,
Section 12.1 of the Base Indenture provides that the Co-Issuers and the
Trustee may at any time and from time to time enter into one or more
Supplements without the consent of any Noteholder or any other Secured Party in
order to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision contained in the Base Indenture or in any Supplement
or in any Notes issued under the Base Indenture or any other Indenture Document
to which the Trustee is a party;


 


WHEREAS,
Section 5.7 of the Series 2008-1 Supplement provides that the Series 2008-1
Supplement may not be modified or amended except in accordance with the terms
of the Base Indenture;


 


WHEREAS,
it has been determined that certain definitions set forth in the Base Indenture
and the Series 2008-1 Supplement are defective or inconsistent with other
provisions of the Base Indenture; and


 


WHEREAS,
all conditions under the Base Indenture have been met for the execution and
delivery of this Supplemental Indenture.


 


NOW,
THEREFORE, the parties hereto agree as follows:


 


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ARTICLE I


 


DEFINITIONS


 


All
capitalized terms used herein (including in the preamble and the recitals
hereto) but not defined herein shall have the meanings assigned to such terms
in the Series 2008-1 Supplemental Definitions List attached as Annex A
to the Series 2008-1 Supplement (the “Series 2008-1 Supplemental Definitions
List”).  All capitalized terms not
otherwise defined herein or therein shall have the meanings assigned thereto in
the Base Indenture Definitions List attached to the Base Indenture as Annex A
thereto (the “Base Indenture Definitions List”).  Unless otherwise specified herein, all
Article, Exhibit, Section or Subsection references herein shall refer to
Articles, Exhibits, Sections or Subsections of the Base Indenture or the Series
2008-1 Supplement (as indicated herein).


 


ARTICLE II


 


AMENDMENT TO BASE INDENTURE
DEFINITIONS LIST AND SERIES 2008-1 SUPPLEMENTAL DEFINITIONS LIST


 


Section 2.1                                      The following
definitions in the Base Indenture Definitions List shall be amended and
restated in their entirety as follows:


 


(a)                                  “Additional
Senior Note Prepayment Amount” means (a) with respect to the Series 2008-1 Class
A Notes, the Additional Series 2008-1 Senior Note Prepayment Amount (as defined
in the Series 2008-1 Supplement), and (b) with respect to any other Series of Class
A Notes, the Additional Series Class A Senior Note Prepayment Amount for such Series
of Class A Notes.


 


(b)                                 “Additional
Subordinated Note Prepayment Amount” means (a) with respect to the Series 2008-1
Class B-1 Notes, the Additional Series 2008-1 Subordinated Note Prepayment
Amount (as defined in the Series 2008-1 Supplement) and (b) with respect to any
other Series of Class B Notes, the Additional Series Class B Subordinated Note
Prepayment Amount for such Series of Class B Notes.


 


(c)                                  “Contributions”
means the amount of equity contributions made in cash by NuCO2 to the Master Issuer during any Monthly
Collection Period that the Transaction Manager elects to have treated as “Contributions”
for purposes of the Indenture; provided that such Contributions shall be
made only (x) during up to seven different Monthly Collection Periods between (i)
the Closing Date and (ii) the later of (1) the Series 2008-1 Legal Final
Maturity Date and (2) any other Series Legal Final Maturity Date, and (y) during
not more than three Monthly Collection Periods that occur during any twelve
month period beginning with the twelve month period commencing on the Closing
Date, and may not exceed $30,000,000 in aggregate amount any time (taking into
account all prior Contributions); provided, further that
Contributions shall not include any contributions made in cash by NuCO2 to the Surplus Account or other account that
does not constitute part of the Collateral under the Base Indenture. In 


 


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connection with each Contribution, NuCO2 shall provide the Trustee, the Administrative
Agent and the Rating Agencies with prior written notice thereof, which notice
shall include its business rationale underlying such Contribution.


 


(d)                                 “Control
Party” means, in respect of the Series 2008-1 Class A Notes, and any other Series
of Class A Notes Outstanding, the Trustee acting at the direction or with the consent
of at least a majority of the sum of the aggregate principal amount of the
Outstanding Series 2008-1 Class A-1 Notes, the aggregate principal amount of
any other Outstanding Series of Class A Notes and, without duplication, the
aggregate commitments in respect of the Series 2008-1 Class A-2 Notes, the Series
2008-1 Class A-3 Notes and any other Series of Variable Funding Senior Notes
Outstanding (the “Required Senior Noteholders”) so long as there are any
Series of Class A Notes Outstanding, and if there are no Series of Class A
Notes Outstanding at such time, the Trustee acting at the direction or with the
consent of the Noteholders holding at least a majority of the aggregate
principal amount of the Outstanding Subordinated Notes (the “Required Subordinated
Noteholders”).


 


(e)                                  “Controlling
Class” means, for so long as any Series of Class A Notes are Outstanding,
the Senior Notes.  If there are no Series
of Class A Notes Outstanding, the Subordinated Notes shall be the Controlling
Class.


 


(f)                                    “Net Cash
Flow” means, with respect to any Payment Date and the Monthly Collection
Period relating to such Payment Date, an amount equal to the excess, if any, of


 


(a) the Adjusted Customer
Collections for each Weekly Allocation Date during such Monthly Collection
Period (excluding Termination Amounts), plus the Customer Location
Equipment Resale Revenues deposited to the Concentration Account during the
Weekly Collection Periods immediately preceding each Weekly Allocation Date
occurring during such related Monthly Collection Period, plus
Contributions made during such Monthly Collection Period; provided that
such Contributions shall be excluded for purposes of (i) the calculation of the
One-Year DSCR, (ii) the calculation of the Pro-Forma DSCR, (iii) the calculation
of the Three-Month DSCR for purposes of determining the end of any Cash
Trapping Period applicable to any Series of Notes, (iv) the calculation of the
Three-Month DSCR for purposes of determining whether the applicable Senior Note
Interest Reserve Required Amount shall be decreased or increased, and (v) the
calculation of the Three-Month DSCR for purposes of determining whether an
Event of Default has occurred, over


 


(b) the sum of (i) the SPE
Operating Expenses paid on each Payment Date with respect to such Monthly
Collection Period, plus (ii) the Transaction Management Fee paid on each
Payment Date to the Transaction Manager with respect to such Monthly Collection
Period, plus (iii) all reimbursements, if any, paid to the Transaction
Manager during such Monthly Collection Period, plus (iv) the Equipment
Holder Operating Expense Fees paid during such Monthly 


 


3

















 


Collection Period, plus
(v) the Product and Lease Expenses paid during such Monthly Collection Period.


 


(g)                                 “Pro Forma Debt Service” means,
with respect to each Payment Date, an amount equal to the sum of (a) the Debt
Service relating to the Series 2008-1 Notes and any other Series of Notes due
on such Payment Date and the two immediately preceding Payment Dates, plus (b) the product of (i) three,
and (ii) the net increase in interest expense (adjusted for the corresponding
reduction in commitment fees) on the Series 2008-1 Class A-2 Notes for the
immediately following Interest Period.


 


(h)                                 “Rating Agency
Confirmation Letter” (i) with respect to a new Series of Notes, refers to
written confirmation by the applicable Rating Agency confirming that such Notes
have been assigned a rating specified in the applicable Series Supplement and
that such ratings are in full force and effect on the such issuance date, (ii) with
respect to existing Notes, refers to written confirmation by the applicable
Rating Agency confirming that the ratings specified in the applicable Series Supplement
relating to such Notes Outstanding remain in full force and effect on the
issuance date of the new Notes after giving effect to such issuance and (iii) with
respect to existing Notes, refers to written confirmation by the applicable
Rating Agency confirming that the ratings specified in the applicable Series Supplement
relating to such Notes Outstanding remain in full force and effect on the
issuance date of the new Notes after giving effect to the occurrence of the
events described in clause (b) or (c), as the case may be, of the definition of
“Change of Control.”


 


(i)                                     “Senior Note
Interest Reserve Account Deficit Amount” means, with respect to each
Payment Date for any Class of Senior Notes, the amount, if any, by which (a) the
Senior Note Interest Reserve Account Required Amount exceeds (b) the amount on
deposit in the Senior Note Interest Reserve Account on such date (after giving
effect to any withdrawals therefrom on such Payment Date); provided,
that with respect to any Payment Date that occurs during the Monthly Collection
Period immediately preceding the later of the Series 2008-1 Legal Final
Maturity Date and the Series Legal Final Maturity Date for any other
Outstanding Series of Senior Notes, the Senior Note Interest Reserve Account
Deficit Amount shall be zero.


 


Section 2.2                                      The following
definitions shall be added to the Base Indenture Definitions List in their
correct alphabetical order:


 


(a)                                  “Additional Series
Class A Senior Note Prepayment Amount”, with respect to any Series of Class
A Notes issued after the Closing Date, the amount identified in the related Series
Supplement for such Series as the “Additional Series Class A Senior Note
Prepayment Amount.”


 


(b)                                 “Additional Series
Class B Subordinated Note Prepayment Amount” means with respect to any Series
of Class B Notes issued after the Closing Date, the amount identified in the
related Series Supplement for such Series as the “Additional Series Class B
Subordinated Note Prepayment Amount.”


 


4

















 


Section 2.3                                      The following
definitions in the Series 2008-1 Supplemental Definitions List shall be amended
and restated in their entirety as follows:


 


(a)                                  “Series 2008-1
Class A-1 Note Make Whole Mandatory Prepayment Premium” means, as of any
date of determination, an amount equal to (x) Series 2008-1 Class A-1 Note Make
Whole Mandatory Prepayment Rate, multiplied by (y) (i) in the case of
any prepayment of principal of the Series 2008-1 Class A-1 Notes pursuant to Section
3.8(c)(i) of the Series 2008-1 Supplement, the Aggregate Outstanding
Principal Amount of all Series 2008-1 Class A-1 Notes, or (ii) in the case of
all other prepayments of principal of the Series 2008-1 Class A-1 Notes
pursuant to Sections 3.8(c)(ii), 3.8(c)(iii), 3.8(c)(iv) and 3.8(c)(v) of
the Series 2008-1 Supplement, the Additional Senior Note Prepayment Amount
applicable to the Series 2008-1 Class A-1 Notes.


 


(b)                                 “Series 2008-1
Class B-1 Note Make Whole Mandatory Prepayment Premium” means, as of any
date of determination, an amount equal to (x) Series 2008-1 Class B-1 Note Make
Whole Mandatory Prepayment Rate, multiplied by (y) (i) in the case of
any prepayment of principal of the Series 2008-1 Class B-1 Notes pursuant to Section
3.8(c)(i) of the Series 2008-1 Supplement, the Aggregate Outstanding
Principal Amount of all Series 2008-1 Class B-1 Notes or (ii) in the case of
all other prepayments of principal of the Series 2008-1 Class B-1 Notes
pursuant to Sections 3.8(c)(ii), 3.8(c)(iii), 3.8(c)(iv) and 3.8(c)(v) of
the Series 2008-1 Supplement, the Additional Series 2008-1 Subordinated Note
Prepayment Amount.


 


Section 2.4                                      The following
definition shall be added to the Series 2008-1 Supplemental Definitions List in
its correct alphabetical order:


 


(a)                                  “Additional Series
2008-1 Senior Note Prepayment Amount” means the sum of (x) the lesser of (A)
the Outstanding Principal Amount of the Series 2008-1 Class A-1 Notes and (B) the
ratio achieved by dividing (I) the sum of (a) the Additional Prepayment Amount
multiplied by the Series 2008-1 Class A-1 Percentage, and (b) any remaining
portion of the Additional Prepayment Amount that is not applied to prepay any
other Series of Class A-1 Notes (or, if more than one Series of Class A-1 Notes
remains outstanding, a pro rata portion of any such remaining Additional
Prepayment Amount, based on the respective principal amounts owed on all such
outstanding Series of Class A-1 Notes), by (II) the sum of (a) one and (b) the Series
2008-1 Class A-1 Note Make Whole Mandatory Prepayment Rate, and (y) if the
Aggregate Outstanding Principal Amount of all Series of Class A-1 Notes is paid
in full (after having applied the Additional Prepayment Amount toward the
payment in full of all such Series of Class A-1 Notes), then the lesser of (A) the
Aggregate Outstanding Principal Amount of the Series 2008-1 Class A-2 Notes and
the Series 2008-1 Class A-3 Notes and (B) any Additional Prepayment Amount
remaining after the payment in full of all Series of Class A-1 Notes
Outstanding.


 


(b)                                 “Additional Series
2008-1 Subordinated Note Prepayment Amount” means the sum of (x) the lesser
of (A) the Outstanding Principal Amount of the Series 2008-1 Class B-1 Notes
and (B) the ratio achieved by dividing (I) the sum of 


 


5

















 


(a) the Additional Prepayment Amount remaining after
giving effect to the prepayment set forth in clause tenth of the
Priority of Payments, if any, multiplied by the Series 2008-1 Class B-1
Percentage, and (b) any remaining portion of such Additional Prepayment Amount
(of the type described in the foregoing clause (a)) that is not applied to
prepay any other Series of Class B Notes (or, if more than one Series of Class B
Notes remains outstanding, a pro rata portion of any such remaining Additional
Prepayment Amount, based on the respective principal amounts owed on all such
outstanding Series of Class B Notes), by (II) the sum of (a) one and (b) the Series
2008-1 Class B-1 Note Make Whole Mandatory Prepayment Rate.


 


(c)                                  “Series 2008-1
Class A-1 Percentage” means, as of any date of determination, the ratio
(expressed as a fraction) achieved by dividing (I) the Outstanding Principal
Amount of the Series 2008-1 Class A-1 Notes as of such date by (II) the
Outstanding Principal Amount of all Series of Class A-1 Notes as of such date.


 


(d)                                 “Series 2008-1
Class B-1 Percentage” means, as of any date of determination, the ratio
(expressed as a fraction) achieved by dividing (I) the Outstanding Principal
Amount of the Series 2008-1 Class B-1 Notes as of such date by (II) the
Outstanding Principal Amount of all Series of Class B Notes as of such date.


 


ARTICLE III


 


GENERAL


 


Section 3.1                                      Ratification of
Base Indenture and Series 2008-1 Supplement.  As supplemented by this Supplemental
Indenture, (i) the Base Indenture is in all respects ratified and confirmed and
the Base Indenture as so supplemented by this Supplemental Indenture shall be
read, taken and construed as one and the same instrument and (ii) the Series 2008-1
Supplement is in all respects ratified and confirmed and the Series 2008-1
Supplement as so supplemented by this Supplemental Indenture shall be read,
taken and construed as one and the same instrument.


 


Section 3.2                                      Certain Notices
to the Rating Agencies.  The
Co-Issuers shall provide to each Rating Agency a copy of this Supplemental
Indenture, each Opinion of Counsel and each Officer’s Certificate delivered to
the Trustee in connection with this Supplemental Indenture, whether pursuant to
the Base Indenture or any other Related Document.


 


Section 3.3                                      Counterparts.  This Supplemental Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all of such counterparts shall together constitute but one and
the same instrument.


 


Section 3.4                                      Governing Law.  THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES 


 


6

















 


(OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.


 


Section 3.5                                      Amendments.  This Supplemental Indenture may not be
modified or amended except in accordance with the terms of the Base Indenture.


 


7

















 


IN
WITNESS WHEREOF, each of the Co-Issuers and the Trustee has caused this
Supplemental Indenture to be duly executed by its respective duly authorized
signatory as of the day and year first written above.


 


	
   

  	
  NuCO2 Funding LLC, as Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:  NuCO2 Florida Inc., its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Eric M. Wechsler 

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Eric
  M. Wechsler 

  
	
   

  	
   

  	
   

  	
  Title:

  	
  General
  Counsel

  
						



 


	
   

  	
   

  
	
   

  	
  NUCO2 LLC, as Co-Issuer

  
	
   

  	
   

  
	
   

  	
   

  	
  By:
   NuCO2 Funding LLC, its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:
   NuCO2 Florida Inc., its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Eric M. Wechsler 

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Eric
  M. Wechsler 

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  General
  Counsel

  



 


	
   

  	
   

  
	
   

  	
  NUCO2 IP LLC, as Co-Issuer

  
	
   

  	
   

  
	
   

  	
   

  	
  By:
   NuCO2 Funding LLC, its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:
   NuCO2 Florida Inc., its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Eric M. Wechsler 

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Eric
  M. Wechsler 

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  General
  Counsel

  



 


	
   

  	
   

  
	
   

  	
  NuCO2 Supply LLC, as Co-Issuer

  
	
   

  	
   

  
	
   

  	
   

  	
  By:
   NuCO2 Funding LLC, its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:
   NuCO2 Florida Inc., its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Eric M. Wechsler 

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Eric
  M. Wechsler 

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  General
  Counsel

  



 


 


 [Signature Page to the Supplemental Indenture
to the Base Indenture and the Series 2008-1 Supplement]


 

















 


	
   

  	
  U.S. Bank National Association, not in its
  individual capacity but solely in its capacity as Trustee, as Administrative
  Agent and as Securities Intermediary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Shannon M. Rantz

  
	
   

  	
   

  	
  Name:

  	
  Shannon
  M. Rantz

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
					



 


 


[Signature
Page to the Supplemental Indenture to the Base Indenture and the Series 2008-1
Supplement]