EXHIBIT 10.15
Amendment No. 9 to Note Purchase Agreement
Amendment No. 9 to Note Purchase Agreement
AMENDMENT XX. 0
XXXXXXXXX XX. 0 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/Xxxxx X. Xxxxxxx
-----------------------
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
------------------------
Title: Partner
DK ACQUISITION PARTNERS, L.P.
By X.X. Xxxxxxxx & Co.,
its general partner
By: /s/Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
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/Xxxxxxxx X.X. Xxxxx, Xx.
---------------------------
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/Xxxxxxxx X. Xxxxxxxxx, Xx.
-----------------------------
Title: Chairman
By: /s/Xxxxxxx X. Xxxxxx
------------------------
Title: Assistant Secretary
SUNTRUST BANKS, INC.
By: /s/Xxxxxx Xxx Xxxxxx
------------------------
Title: Senior Vice President
