Exhibit 10.4
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of October 1, 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.
2, 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 1.01 of the Note Purchase Agreement shall be amended by
inserting the following definitions (or, in the case of any of the following
terms that are already defined in the Note Purchase Agreement, by amending and
restating in its entirety such term to read as set forth below):
"AMENDMENT NO. 2" means Amendment No. 2 dated as of October 1, 2004 to
this Agreement.
"AMENDMENT NO. 2 EFFECTIVE DATE" means the date on which Amendment No.
2 shall become effective in accordance with the terms thereof.
"BAY AREA ACQUISITION" means the purchase by the Company of those
certain assets of Bay Area Equipment Co., Inc. previously identified by the
Company to the Investors.
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
"CONSOLIDATED EBITDA" means, for any period, Consolidated EBIT for
such period, adjusted by (x) adding thereto (i) the amount of all
amortization of intangibles and depreciation that were deducted in arriving
at Consolidated Net Income for such period, (ii) the amount of all expenses
incurred in connection with the Transactions or the Senior Credit Agreement
for such period to the extent that same were deducted in arriving at
Consolidated Net Income for such period, and (iii) the amount of all
non-cash deferred compensation expense for such period to the extent that
same was deducted in arriving at the Consolidated Net Income for such
period and (y) deducting therefrom (i) the amount of all cash payments
during such period that are associated with any non-cash deferred
compensation expense that was added back to Consolidated Net Income in a
previous period and (ii) the amount of all consolidated interest income of
the Company and its Subsidiaries for such period; it being understood that
in determining the Consolidated Total Leverage Ratio only, Consolidated
EBITDA for any period shall be calculated on a Pro Forma Basis to give
effect to any Acquired Entity or Business acquired during such period
pursuant to a Permitted Acquisition and not subsequently sold or otherwise
disposed of by the Company or any of its Subsidiaries during such period;
PROVIDED that, notwithstanding anything to the contrary contained above in
this definition or clause (iii) of the definition of PRO FORMA Basis, upon
the consummation of the Pain Acquisition or the Bay Area Acquisition, as
the case may be, in the case of any such calculation of Consolidated EBITDA
for any period which includes a fiscal quarter of the Company occurring
prior to (or ending on) the Pain Acquisition Date or the date of the
consummation of the Bay Area Acquisition, as the case may be, it is
understood and agreed that the portion of "Consolidated EBITDA"
attributable to the Acquired Entity or Business acquired pursuant to the
Pain Acquisition or the Bay Area Acquisition, as the case may be, for any
such fiscal quarter included in such period shall equal $1,100,000 (in the
case of the Pain Acquisition) and $275,000 (in the case of the Bay Area
Acquisition)".
"PAIN ACQUISITION" means the acquisition by the borrower of certain
assets of Pain Enterprises pursuant to, and in accordance with the terms
of, the Pain Acquisition Agreement.
"PAIN ACQUISITION AGREEMENT" means that certain Asset Purchase
Agreement, dated as of October 1, 2004, by and between Pain Enterprises and
the Company.
"PAIN ACQUISITION DATE" means the date on which the Pain Acquisition
is consummated, which date shall be the Amendment No. 2 Effective Date.
"PAIN ENTERPRISES" means Pain Enterprises, Inc., an Indiana
corporation.
"SENIOR CREDIT AGREEMENT" means the Credit Agreement, dated as of
August 25, 2003, among the Company, the lenders from time to time parties
thereto and BNP Paribas, as administrative agent for such lenders, and any
refinancing, refunding, extension or renewal thereof (whether or not with
any of the lenders or the agent for such lenders then party to the Senior
Credit Agreement), as amended by the First Amendment to the Senior Credit
Agreement (as such term is defined in Section 4(b) of Amendment No. 2) and,
in each case, as at any time
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
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thereafter amended, modified, restated and/or supplemented in accordance
with Section 8.13(a).
"Updated Projections" means the projections prepared by the Company in
connection with the Pain Acquisition and the financing thereof and
delivered to the Investors prior to the Amendment No. 2 Effective Date.
B. The definition of "Senior Debt" in Section 1.01 of the Note
Purchase Agreement shall be amended by replacing the amount "$60,000,000" in the
proviso at the end of such definition with the amount "$75,000,000".
C. Section 7.10(a) of the Note Purchase Agreement shall be amended by
deleting clause (viii) of said Section (and the word "and" appearing immediately
prior to said clause) and inserting the following text in lieu thereof:
"(viii) both before and after giving effect to such Permitted
Acquisition and the payment of all post-closing purchase price adjustments
required (in the good faith determination of the Company) in connection
with such Permitted Acquisition (and all other Permitted Acquisitions for
which such purchase price adjustments may be required to be made) and all
capital expenditures (and the financing thereof) reasonably anticipated by
the Company to be made by the Company and its Subsidiaries within the
180-day period (such period for any Permitted Acquisition, a "Post-Closing
Period") following such Permitted Acquisition (including capital
expenditures in the business acquired pursuant to such Permitted
Acquisition and in the businesses acquired pursuant to all other Permitted
Acquisitions with Post-Closing Periods ended during the Post-Closing Period
of such Permitted Acquisition), the total unused amount of the commitments
under the Senior Credit Agreement shall equal or exceed $5,000,000; and
(ix) the Company shall have delivered to each Investor a certificate
executed by its chief financial officer, certifying to the best of such
officer's knowledge, compliance with the requirements of preceding clauses
(i) through (viii), inclusive, and containing the calculations (in
reasonable detail) required by preceding clauses (iii), (iv), (vi), (vii)
and (viii)."
D. The Company and the Investors hereby agree that the Pain
Acquisition and the Bay Area Acquisition may be effected as Permitted
Acquisitions subject to the terms, conditions and requirements of Section 7.10
of the Note Purchase Agreement, except that (I) clause (vi) of Section 7.10(a)
of the Note Purchase Agreement shall be determined without regard to, and shall
not apply to, the Pain Acquisition or the Bay Area Acquisition, so long as the
aggregate consideration paid in connection with the Pain Acquisition and the Bay
Area Acquisition (determined as provided in said clause (vi)) does not exceed
$18,000,000 and $6,000,000, respectively and (II) in the case of the Bay Area
Acquisition, same may not be consummated after March 31, 2005.
E. Section 8.09(a) of the Note Purchase Agreement shall be amended in
its entirety to read as follows:
"(a) The Company will not, and will not permit any of its Subsidiaries
to, make any Capital Expenditures, except that during any fiscal year of
the Company set forth below (taken as one accounting period), the Company
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
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and its Subsidiaries may make Capital Expenditures, so long as the
aggregate amount of all such Capital Expenditures does not exceed in any
such period set forth below the amount set forth opposite such period
below:
Fiscal Year Ending Amount ($)
------------------ ----------
June 30, 2005 27,000,000
June 30, 2006 24,000,000
June 30, 2007 24,400,000
June 30, 2008 and thereafter 25,500,000."
F. Section 8.09(b) of the Note Purchase Agreement shall be amended by
deleting the word "quarter" in each place such word appears in said Section and
inserting the word "year" in lieu thereof.
G. Section 8.11 of the Note Purchase Agreement shall be amended by
changing the ratio listed in the table therein (a) for the period "March 31,
2005 through and including June 29, 2005" from "3.40:1.00" to "3.60:1.00" and
(b) for the period "June 30, 2005 through and including September 29, 2005" from
"3.10:1.00" to "3.50:1.00".
Section 3. 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 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. 2 (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 11,604,824 and (iii) the number of
outstanding options granted under the Company's stock option plans has
changed;
(b) no Default has occurred and is continuing; and
(c) (i) the PRO FORMA consolidated balance sheet of the Company and
its Subsidiaries at September 30, 2004, and the PRO FORMA consolidated
statement of income of the Company and its Subsidiaries for the twelve
months ended September 30, 2004, in each case after giving effect to the
Pain Acquisition and the financing therefor, copies of which have been
delivered to the Investors prior to the Amendment No. 2 Effective Date,
present fairly in all material respects the PRO FORMA consolidated
financial position of the Company and its Subsidiaries as of September 30,
2004, and the PRO FORMA consolidated results of operations of the Company
and its Subsidiaries for the twelve-month period ended on September 30,
2004, (ii) the Updated Projections delivered to the Investors prior to the
Pain Acquisition Date have been prepared in good faith and are based on
reasonable assumptions, and there are no statements or conclusions in the
Updated Projections which are based upon or include information known to
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
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the Company to be misleading in any material respect or which fail to take
into account material information known to the Company regarding the
matters reported therein and (iii) on the Pain Acquisition Date, the
Company believes that the Updated Projections are reasonable and
attainable, it being recognized by the Investors, however, that projections
as to future events are not to be viewed as facts and that the actual
results during the period or periods covered by the Updated Projections may
differ from the projected results and such differences may be material.
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. 2. The execution and delivery of one or more
counterparts of this Amendment No. 2 by the Company and the Required
Investors;
(b) FIRST AMENDMENT TO SENIOR CREDIT AGREEMENT. (i) The execution and
delivery of one or more counterparts of the First Amendment to Credit
Agreement; First Amendment to Pledge Agreement; and First Amendment to
Security, dated as of the date hereof, with respect to the Senior Credit
Agreement and certain of the other Senior Credit Documents, in the form
attached to this Amendment No. 2 (the "First Amendment to Senior Credit
Agreement"); and each Investors by its execution and delivery of this
Amendment No. 2 consents to the FIRST AMENDMENT TO SENIOR CREDIT AGREEMENT;
(ii) evidence that the lenders party to the Senior Credit Agreement (or
their representative) shall have consented to this Amendment No. 2 in
accordance with the terms of the Senior Credit Agreement; and (iii)
evidence that the conditions to the effectiveness of the First Amendment to
Senior Credit Agreement shall have been satisfied (or shall, concurrently
with the effectiveness of this Amendment No. 2, be satisfied); and
(c) Pain Acquisition. With respect to the Pain Acquisition, (i) the
Investors shall have received a certificate, dated the Amendment No. 2
Effective Date and signed on behalf of the Company by its chief financial
officer, meeting the requirements of clause (ix) of Section 7.10(a) of the
Note Purchase Agreement (as amended hereby) and (ii) the Company shall have
caused each Subsidiary which is formed to effect, or is acquired pursuant
to, the Pain Acquisition to comply with, and to execute and deliver all of
the documentation as and to the extent required by, Section 7.09 of the
Note Purchase Agreement.
Notwithstanding anything to the contrary contained above or elsewhere in this
Amendment No. 2, unless the Amendment No. 2 Effective Date and the Pain
Acquisition Date occur on or prior to October 31, 2004, the Amendment No. 2
Effective Date shall not thereafter occur and this Amendment No. 2 shall be of
no further force or effect.
Section 5. MISCELLANEOUS. Except as herein provided, the Note Purchase
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 2 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
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
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hereto may execute this Amendment No. 2 by signing any such counterpart. This
Amendment No. 2 shall be governed by, and construed in accordance with, the law
of the State of New York.
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
2 to be duly executed and delivered as of the day and year first above written.
NUCO2 INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Title: Chief Financial Officer
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
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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. 2 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:
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XXXXXXX XXXXXX PRIVATSTIFTUNG
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Trustee
AMENDMENT XX. 0 XX XXXX XXXXXXXX XXXXXXXXX
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XXXX LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: VPOA
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
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XXX XXXXX XXXX XX XXXXXXXX PLC
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title:
AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
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