EXHIBIT 10.15
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of November 14, 1997, between:
NUCO2 INC., a corporation duly organized and validly existing
under the laws of the State of Florida (the "COMPANY");
each of the Initial Holders, including the Additional Initial
Holder (as defined below), appearing under the caption "INITIAL
HOLDERS" on the signature pages hereto (each, an "INITIAL HOLDER", and
collectively, the "INITIAL Holders").
WHEREAS, the Company and the Initial Holders (other than the
Additional Initial Holder) are party to a Warrant Agreement dated as of October
31, 1997 (as heretofore modified and supplemented and in effect on the date
hereof, the "WARRANT AGREEMENT");
WHEREAS, pursuant to the Warrant Agreement, in connection with
the issuance by the Company of up to $25,000,000 aggregate principal amount of
Senior Subordinated Notes (the "OLD NOTES") and as an inducement for the
purchase by the Initial Holders (other than the Additional Initial Holder) of up
to such $25,000 aggregate principal amount of the Notes, the Company issued
Warrants to the Initial Holders (other than the Additional Initial Holder)
providing for the purchase of shares of Common Stock of the Company;
WHEREAS, in connection with the issuance by the Company of an
additional $5,000,000 aggregate principal amount of Senior Subordinated Notes
(the "ADDITIONAL NOTE", and together with the Old Notes, the "NOTES") to
PaineWebber High Income Fund, a series of PaineWebber Managed Investments Trust
(the "ADDITIONAL INITIAL HOLDER") and as an inducement for the purchase by the
Additional Initial Holder of such $5,000,000 aggregate principal amount of the
Additional Note, the Company has agreed to issue a Warrant to the Additional
Initial Holder providing for the purchase of shares of Common Stock of the
Company;
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WHEREAS, the Additional Initial Holder desires to become an
Initial Holder party to the Warrant Agreement and to purchase the Additional
Note from the Company, and the Company desires to issue to the Additional
Initial Holder, a Warrant having the same terms as the Warrants heretofore
issued by the Company under the Warrant Agreement. The Company and the Initial
Holders (including the Additional Initial Holder) wish to amend the Warrant
Agreement to add the Additional Initial Holder as an Initial Holder thereunder
and to provide for the issuance of such additional Warrant and to make other
modifications to the Warrant Agreement. Accordingly, the parties hereto hereby
agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in the Warrant Agreement are used herein as
defined therein.
Section 2. AMENDMENTS. Subject to the satisfaction of the
conditions precedent specified in Section 4 below, but effective as of the date
hereof, the Warrant Agreement shall be amended as follows:
A. References in the Warrant Agreement to "this Agreement"
(and indirect references such as "hereunder, "hereby", "herein" and "hereof")
shall be deemed to be references to the Warrant Agreement as amended hereby.
B. A new Section 2.07 is added to the Warrant Agreement to
read as follows:
"SECTION 2.07 ISSUANCE OF ADDITIONAL WARRANT. (a) Subject to
and upon the conditions set forth in this Agreement, the Company shall issue to
PaineWebber High Income Fund, a series of PaineWebber Managed Investments Trust
(the "Additional Initial Holder"), on November 14, 1997 and for no cash
consideration, a Warrant (the "ADDITIONAL WARRANT") in the form of Annex I
covering such number of Stock Units as is equal to the percentage of the issued
and outstanding shares of Common Stock on a fully diluted basis on the date of
issuance of the Additional warrant as is specified opposite the name of the
Additional Initial Holder on the signature page(s) hereto. The number of shares
of Common Stock comprising each Stock unit covered by the Additional Warrant
issued under this Agreement shall be subject to
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adjustment as provided in SECTIONS 6 and 7 hereof. The Additional Warrant shall
constitute a Warrant, and the Additional Initial Holder shall be an Initial
Holder, for all purposes of this Agreement. On November 14, 1997, the Company
shall deliver to the Additional Initial Holder a single certificate for the
Warrant to be acquired by such Additional Initial Holder hereunder, registered
in the name of such Additional Initial Holder.
C. Section 12.01(b) of the Warrant Agreement is amended to
insert a new sentence at the end thereof to read as follows:
"Notwithstanding the foregoing, if any Initial Holder (including the
Additional Initial Holder) who holds at least $5,000,000 of Notes (the
"$5 MILLION NOTE HOLDER") requests a Demand Registration and the
Majority Holders do not want to consummate a Demand Registration, then
upon receipt of a Demand Notice from the $5 Million Note Holder, the
Company shall effect a Demand Registration for such Warrants or shares
of Warrant Stock held by such $5 Million Note Holder (a "$5 MILLION
NOTE HOLDER DEMAND REGISTRATION"); PROVIDED, HOWEVER, each $5 Million
Note Holder may exercise its right to request a $5 Million Note Holder
Demand Registration pursuant to this sentence only once."
Notwithstanding the foregoing, no right to a Demand Registration shall
be deemed to have been exercised or forfeited and such Demand Notice
for a $5 Million Note Holder Demand Registration shall not operate to
reduce the Company's obligation to effect a Demand Registration
pursuant to a Demand Notice on two occasions. In addition, the Company
shall comply with Section 12.01(b) for each $5 Million Note Holder
Demand Registration.
Section 3. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to the Initial Holders
that the representations and warranties set forth in Section 3 of the Warrant
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 Section 3 to "this Agreement" (or
words of similar import) referred to the Warrant Agreement as amended by this
Amendment No. 1.
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(b) The Additional Initial Holder represents to the Company
that the representations set forth in Section 2.03 of the warrant Agreement are
true and complete with respect to the Additional Initial Holder on the date of
issuance of the Additional Warrant as if made on and as of such date and each
reference in said Section 2.03 to "this Agreement (or words of similar import)
referred to the Warrant Agreement as by this Amendment No. 1.
Section 4. CONDITIONS PRECEDENT. As provided in Section 2
above, the amendments to the Warrant Agreement set forth in said Section 2 shall
become effective, as of the date hereof, upon the execution and delivery of one
or more counterparts of this Amendment No. 1 by each of the parties hereto.
Section 5. MISCELLANEOUS. Except as herein provided, the
warrant 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.
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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.
COMPANY
NUCO2 INC.
By: /S/ XXXXX XXXXXXXX
----------------------
Title: CFO
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INITIAL HOLDERS
CHASE EQUITY ASSOCIATES L.P.
By Chase Capital Partners,
its general partner
By: /S/ XXXXXXX X. XXXXXX
-------------------------
Title: General Partner
ORIX USA CORPORATION
By:/S/ XXXXXXXX XXXXXX
----------------------
Title: Vice President
EMPIRE INSURANCE COMPANY, as
executed on their behalf by their
Investment Manager, Cohanzick
Management, L.L.C.
By: /S/XXXXX XXXXXXX
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Title: President
DK ACQUISITION PARTNERS, L.P.
By X.X. Xxxxxxxx & Co.
its general partner
By:/S/ XXXXXX X. XXXXXXX
------------------------
Title: General Partner
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NATIONSBANC XXXXXXXXXXX SECURITIES,
INC.
By: /S/ XXXXXX X. XXXX
----------------------
Title: Managing Director
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PERCENTAGE
1.17% PAINEWEBBER HIGH INCOME FUND, a series
of PaineWebber Managed Investments Trust
By:/S/ XXXX XXXXXXXX
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Title: Vice President and
Treasurer
Address for Notices:
PAINEWEBBER HIGH INCOME FUND, a
series of PaineWebber Managed
Investments Trust
c/o Xxxxxxxx Xxxxxxxx Asset
Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxxx
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
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