Exhibit 10.15
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of January __, 2000 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");
each of the Subsidiaries of the Company appearing under the caption
"SUBSIDIARY GUARANTORS" on the signature pages hereto (each a "Subsidiary
Guarantor" and, collectively, the "Subsidiary Guarantors"; and, together
with the Company, the "Obligors"); and
each of the Investors appearing under the caption "INVESTORS" on the
signature pages hereto (each, an "Investor", and collectively, the
"Investors").
WHEREAS, the Obligors 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 issued (or will issue) its 12% Senior
Subordinated Notes in an aggregate principal amount of up to $45,000,000 to the
Investors; 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. 4, 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 of the Note Purchase Agreement shall be amended in
its entirety to read as follows:
-2-
"SECTION 8.09 Financial Covenants.
(a) Interest Coverage Ratio. The Company will not permit the
Interest Coverage Ratio to be less than the following respective ratios as at
the last day of each fiscal quarter during the following respective periods:
Period Ratio
------ -----
From April 1, 1999
through March 31, 2000 1.25 to 1.00
From April 1, 2000
through June 30, 2000 1.50 to 1.00
From July 1, 2000
through September 30, 2000 1.65 to 1.00
From October 1, 2000
through December 31, 2000 1.75 to 1.00
From January 1, 2001
through March 31, 2001 2.00 to 1.00
From April 1, 2001
through June 30, 2001 2.25 to 1.00
From July 1, 2001
through September 30, 2001 2.40 to 1.00
From October 1, 2001
and at all times thereafter 2.50 to 1.00
(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 October 1, 1999
through December 31, 1999 5.50 to 1.00
From January 1, 2000
through March 31, 2000 5.00 to 1.00
-3-
From April 1, 2000
And at all times thereafter 4.50 to 1.00
(c) Minimum Net Worth. The Company shall at all times maintain
Consolidated Net Worth of not less than the sum of (a) $37,500,000, (b)
plus 50% of the cumulative Consolidated Net Income for each fiscal quarter
ending on or after December 31, 1997 (but specifically not including any
Consolidated Net Loss for any such fiscal quarter) plus (c) the cumulative
net proceeds of all equity offerings (if any) made by the Company for each
fiscal quarter ending on or after September 30, 1997."
Section 3. Representations and Warranties. The Company represents
and warrants to the Investors that: (i) 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.
4 (except that (x) certain of the indebtedness listed in Schedule 6.12 to the
Note Purchase Agreement has been paid off by the Company, (y) 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 7,216,997
and (z) the number of outstanding options granted under the Company's stock
option plans has changed); and (ii) no Default has occurred and is continuing.
Section 4. Conditions Precedent. As provided in Section 2 above, 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:
(a) Amendment No. 4. The execution and delivery of one
or more counterparts of this Amendment No. 4 by the Obligors 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. 4.
(b) Second Amendment to Senior Credit Agreement. Receipt
by the Investors of a copy of the Second Amendment to the Senior
Credit Agreement as executed by the parties thereto.
(c) Other Documents. Receipt by the Investors of such
other documents as any Investor or special New York counsel to the
Investors 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. 4 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. 4 by signing any such
counterpart. This Amendment No. 4 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. 4 to be duly executed and delivered as of the day and year first above
written.
NUCO2 INC.
By: /s/ Xxxxx Xxxxxxxx
----------------------
Title: CFO
SUBSIDIARY GUARANTORS
NUCO2 ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxx
------------------------
Title: Vice President
XXXX COMPRESSED GASES, INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------
Title: Vice President
INVESTORS
CHASE EQUITY ASSOCIATES, LLC
(f/k/a Chase Equity Associates L.P.)
By Chase Capital Partners,
its Manager
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Title: General Partner - Mezzanine
DK ACQUISITION PARTNERS, L.P.
By X.X. Xxxxxxxx & Co.,
its general partner
By: _______________________
Title:
EMPIRE INSURANCE COMPANY,
as executed on their behalf by
their Investment Manager,
Cohanzick Management, L.L.C.
By_________________________
Title:
ORIX USA CORPORATION
By:____________________
Title:
PAINEWEBBER HIGH INCOME FUND,
a series of PaineWebber Managed Investments
Trust
By:
Title:
SUNTRUST BANKS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------
Title: Group Vice President
