EXHIBIT 10.5
AMENDMENT XX. 0
XXXXXXXXX XX. 0 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
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(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
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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, specifying
such date, the aggregate principal amount of the Notes to be prepaid on
such date, the principal amount of each Note held by such holder to be
prepaid the interest to be prepaid to the prepayment date with respect to
such principal amount being prepaid and the premium (if any), as
applicable, due in connection with such prepayment.
(e) In the case of each partial prepayment of the Notes, the
principal amount of the Notes to be prepaid shall be allocated among all
of the Notes at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not
theretofore called for prepayment; PROVIDED that such prepayment shall be
applied, first, to the prepayment of all PIK Interest Amounts, together
with the accrued and unpaid interest thereon, and, only after such amounts
have been paid in full, to the prepayment of the Original Principal Amount
of the Notes. At the request of the Company, any Note which is to be
prepaid only in part shall be surrendered to the Company by the holder
thereof, and the Company shall issue to such holder a new Note equal in
principal amount to the unpaid portion of the surrendered Note (after
giving effect to such prepayment) and in the form of Exhibit A.
(f) In the case of each prepayment of Notes pursuant to this Section
3.01, the principal amount of each Note to be prepaid shall mature and
become due and payable on the date fixed for such prepayment, together
with interest and premium (if any) on such principal amount accrued to
such date. From and after such date, unless the Company shall fail to pay
such principal amount when so due and payable, together with the interest
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
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and premium (if any) thereon, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to
the Company and canceled and shall not be reissued, and no Note shall be
issued in lieu of any prepaid principal amount of any Note.
(g) The Company will not and will not permit any of its Affiliates
to purchase, redeem, prepay or otherwise acquire, directly or indirectly,
any of the outstanding Notes except upon the payment or prepayment of the
Notes in accordance with the terms of this Agreement or otherwise on terms
identical to those offered to all the other Investors (whether or not such
terms have actually been accepted by all the Investors). The Company will
promptly cancel all Notes acquired by it or any Affiliate pursuant to any
payment, prepayment or purchase of Notes pursuant to any provision of this
Agreement and no Notes may be issued in substitution or exchange for any
such Notes."
Section 3. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Investors that on the date that this Amendment No. 1 becomes
effective, after giving effect to this Amendment No. 1 and the actions
contemplated hereby: (a) the representations and warranties set forth in Article
VI of the Note Purchase Agreement are true and complete on the date hereof as if
made on and as of the date hereof (it being understood that any representation
or warranty made as of a specific date shall be true and correct in all material
respects as of such specified date) and (b) no Default or Event of Default has
occurred and is continuing.
Section 4. CONDITIONS PRECEDENT. The amendments to the Note Purchase
Agreement set forth in Section 2 above shall become effective, as of the date
hereof, upon the satisfaction of the following conditions:
(a) AMENDMENT NO. 1. The execution and delivery of one or more
counterparts of this Amendment No. 1 by the Company and the Investors, and
receipt by the Investors of evidence that the lenders party to the Senior
Credit Agreement shall have approved this Amendment No. 1; and
(b) AMENDMENT FEE. Receipt by each Investor of an amendment fee
equal to 1.0% of the Original Principal Amount of the Notes held by such
Investor.
Section 5. MISCELLANEOUS. Except as herein provided, the Note
Purchase Agreement shall remain unchanged and in full force and effect. This
Amendment No. 1 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. 1 by signing any such
counterpart. This Amendment No. 1 shall be governed by, and construed in
accordance with, the law of the State of New York.
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed and delivered as of the day and year first above
written.
NUCO2 INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
INVESTORS
X.X. XXXXXX PARTNERS (BHCA), L.P.
BY: JPMP MASTER FUND MANAGER, L.P.,
ITS GENERAL PARTNER
BY: JPMP CAPITAL CORP.,
ITS GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL
INVESTORS, L.P.
BY: JPMP GLOBAL INVESTORS, L.P.,
ITS GENERAL PARTNER
BY: JPMP CAPITAL CORP.,
ITS GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL
INVESTORS (CAYMAN), L.P.
BY: JPMP GLOBAL INVESTORS, L.P.,
ITS GENERAL PARTNER
BY: JPMP CAPITAL CORP.,
IT GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name:
Title:
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
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X.X. XXXXXX PARTNERS GLOBAL
INVESTORS A, L.P.
BY: JPMP GLOBAL INVESTORS, L.P.,
ITS GENERAL PARTNER
BY: JPMP CAPITAL CORP.,
IT GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL
INVESTORS (CAYMAN) II, L.P.
BY: JPMP GLOBAL INVESTORS, L.P.,
ITS GENERAL PARTNER
BY: JPMP CAPITAL CORP.,
IT GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name:
Title:
XXXXXXX XXXXXX PRIVATSTIFTUNG
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Trustee
KBGM LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: UPOA
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
Title: Director
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
