EXHIBIT 10.2
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of May 10, 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. 8, 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. Section 1.01 of the Note Purchase Agreement shall be amended by
adding the following new definitions (to the extent not already included in said
Section 1.01) and inserting the same in the appropriate alphabetical locations
and amending the following definitions (to the extent already included in said
Section 1.01), as follows:
"Amendment No. 8" means Amendment No. 8 to this Agreement dated as
of May 10, 2002.
"Annualized EBITDA" means, as at any date of determination thereof,
EBITDA for the four preceding fiscal quarters ending on or most recently
ended prior to such date.
Amendment No. 8 to Note Purchase Agreement
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C. Section 2.04(a) of the Note Purchase Agreement shall be amended
in its entirety to read as follows:
"(a) The unpaid principal amount of each Note shall bear
interest from the Closing Date until maturity (whether by
acceleration or otherwise) at the rate of 12% per annum (the
"Interest Rate"); provided that (i) for each fiscal quarter of the
Company ending on or after June 30, 2002 for which the Company fails
to satisfy the requirements of Section 8.09(b) (as in effect
immediately prior to the effectiveness of Amendment No. 8), the
Interest Rate shall be increased by an additional 0.75% per annum
(the "Incremental Rate Increase") but at no time shall the Interest
Rate exceed 14% per annum and (ii) if the Company is in compliance
with the requirements of Section 8.09(b) (as in effect immediately
prior to the effectiveness of Amendment No. 8) for any fiscal
quarter of the Company ending after an Incremental Rate Increase has
occurred, the Interest Rate shall be reset to 12% per annum but
shall be subject to further increase as provided in clause (i)
above. Each change in the Interest Rate resulting from the Company
satisfying, or failing to satisfy, the requirements of Section
8.09(b) as provided above shall be effective on the first Business
Day immediately following the date of delivery to the Investors of
the annual financial statements required under Section 7.01(a), or
the quarterly financial statements required under Section 7.01(b),
as applicable. Notwithstanding the foregoing, at any time during
which the Company has failed to deliver such financial statements
when required by Sections 7.01(a) and 7.01(b), as applicable, the
Interest Rate shall be increased to 14% per annum, until such time
as the delinquent financial statements are delivered, at which time
the Interest Rate shall be reset as provided above."
D. Sections 7.01(b) and (c) of the Note Purchase Agreement shall be
amended in their entirety to read as follows:
"(b) within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company, its
consolidated balance sheet and related statements of income and cash
flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, together with (i) a certificate from the chief
financial officer of the Company certifying that such financial
statements present fairly in all material respects the financial
condition and results of operations of the Company and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to customary year-end audit
adjustments and the absence of footnotes, (ii) a comparison of the
quarterly unaudited financial statements (which shall include a
consolidated balance sheet and related statements of income and cash
flows) to the projections set forth in Exhibit J to the Senior
Credit Agreement (the "Projections") and an analysis as to the
differences, if any, between the unaudited financial statements
(which shall include a consolidated balance sheet and related
statements of income and cash flows) and the Projections and (iii) a
Summary of Customer Data in the form of Exhibit D for such fiscal
quarter;
Amendment No. 8 to Note Purchase Agreement
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(c) as soon as available and in any event within 45 days
after the end of each month, the consolidated balance sheet and
related statement of income of the Company for such month setting
forth in each case, (i) in comparative form the corresponding
figures in the Projections for such month, (ii) in comparative form
the corresponding figures in the Projections for the Company's
fiscal year to date and (iii) an analysis as to the differences, if
any, between the consolidated balance sheet and related statements
of income and the Projections;"
E. Section 8.09(a) of the Note Purchase Agreement shall be amended
in its entirety to read as follows:
"(a) Interest Coverage Ratio. The Company will not permit
the Interest Coverage Ratio to be less than the following respective
ratios as of the last day of each fiscal quarter during the
following respective periods:
Period Ratio
------ -----
From April 1, 2002
through September 30, 2002 2.10 to 1.00
From October 1, 2002
through December 31, 2002 2.15 to 1.00
From January 1, 2003
through March 31, 2003 2.25 to 1.00
From April 1, 2003
and at all times thereafter 2.50 to 1.00"
Amendment Xx. 0 xx Xxxx Xxxxxxxx Xxxxxxxxx
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X. 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 April 1, 2002
through June 30, 2002 5.00 to 1.00
From July 1, 2002
through September 30, 2002 5.20 to 1.00
From October 1, 2002
through December 31, 2002 5.35 to 1.00
From January 1, 2003
through March 31, 2003 5.20 to 1.00
From April 1, 2003
and at all times thereafter 4.50 to 1.00"
G. Exhibit D attached to this Amendment No. 8 shall be incorporated
into the table of contents of the Note Purchase Agreement and deemed attached
thereto.
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 March
31, 2002 with the requirement under Section 8.09(b) of the Note Purchase
Agreement (as in effect immediately prior to the effectiveness of this Amendment
No. 8).
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.
8 (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 8,900,700, (iii)
the number of outstanding options granted under the Company's stock option plans
has changed and (iv) references in the Note Purchase Agreement to Schedule
6.14(a) shall be deemed to refer to Schedule 6.14(a) to this Amendment No. 8);
and (b) (after giving effect to the waiver under Section 3 above) no Default has
occurred and is continuing.
Amendment No. 8 to Note Purchase Agreement
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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. 8. The execution and delivery of one or
more counterparts of this Amendment No. 8 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. 8.
(b) First Amendment to Senior Credit Agreement. Receipt
by the Investors of a copy of the First 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. 8 prior
to 12:00 noon (New York City time) on May 10, 2002 of an amendment
fee equal to 50 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. 8 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. 8 by signing any such
counterpart. This Amendment No. 8 shall be governed by, and construed in
`accordance with, the law of the State of New York.
Amendment No. 8 to Note Purchase Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 8 to be duly executed and delivered as of the day and year first above
written.
NUCO2 INC.
By: Xxxxx X. Xxxxxxx
--------------------
Title: Chief Financial Officer
Amendment No. 8 to Note Purchase Agreement
INVESTORS
X.X. XXXXXX PARTNERS (BHCA), L.P.
(f/k/a Chase Capital Investments, L.P.)
By JPMP Master Fund Manager, L.P.,
its General Partner
By JPMP Capital Corp.,
its General Partner
By: Xxxxxxx X. Xxxxxx
---------------------
Title: Managing Director
DK ACQUISITION PARTNERS, L.P.
By X.X. Xxxxxxxx & Co.,
its general partner
By: Xxxxxx X. Xxxxxxx, Xx.
--------------------------
Title: Xxxxxx X. Xxxxxxx, Xx
General Partner
EMPIRE INSURANCE COMPANY,
as executed on their behalf by
their Investment Manager,
Cohanzick Management, L.L.C.
By: Xxxxx Xxxxxxx
-----------------
Title: Authorized Agent
ORIX USA CORPORATION
By: Xxxxxxxx X.X. Xxxxx, Xx.
----------------------------
Title: Xxxxxxxx X.X. Xxxxx, Xx.
Authorized Representative
Amendment No. 8 to Note Purchase Agreement
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PAINEWEBBER HIGH INCOME FUND,
a series of PaineWebber Managed Investments
Trust
By_________________________
Title:
SUNTRUST BANKS, INC.
By: Xxxxxx Xxx Xxxxxx
---------------------
Title: Senior Vice President
Amendment No. 8 to Note Purchase Agreement
