EXHIBIT 10.15
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of September 24, 2001 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 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. 7, 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
deleting the definition of "Consolidated EBIT".
AMENDMENT NO. 7 TO NOTE PURCHASE AGREEMENT
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C. The definition of "Restricted Payment" in Section 1.01 of the
Note Purchase Agreement shall be amended by deleting the words "to the Company"
appearing at the end of clause (i) thereof.
D. Section 1.01 of the Note Purchase Agreement shall be amended by
inserting each of the following definitions in the appropriate alphabetical
order (if not already set forth in said Section 1.01) or amending and restating
such definitions in their entirety (if already set forth in said Section 1.01):
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal period
of the Company, the net income (or loss) of the Company and its
Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, but excluding therefrom (to the extent otherwise
included therein) (i) any extraordinary gains or losses, (ii) any gains
attributable to write-ups of assets and (iii) any equity interest of the
Company or any Subsidiary of the Company in the unremitted earnings of any
Person that is not a Subsidiary and (iv) any income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary or is merged into
or consolidated with the Company or any Subsidiary or the date that such
Person's assets are acquired by the Company or any Subsidiary.
"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
ended June 30, 2001, 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 the amount of $7,600,000 and (b) 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 and any waiver fees and any termination cost
associated with the Company's current interest rate protection agreement
during such quarter in the amount of $1,600,000.
"SENIOR CREDIT AGREEMENT" means the Second Amended and Restated
Revolving Credit Agreement dated as of September 24, 2001 by and among the
Company, the lenders from time to time parties thereto, SunTrust Bank, as
successor by merger to SunTrust Bank, South Florida, National Association,
as administrative agent, issuing bank and swing line lender, Xxxxxx
Financial, Inc., as syndication agent, and BNP Paribas, as documentation
agent, as executed and delivered on September 24, 2001, 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), in each case, at any time amended or modified in
accordance with Section 8.10(a).
AMENDMENT NO. 7 TO NOTE PURCHASE AGREEMENT
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"SENIOR DEBT" means the following obligations of the Company and its
Subsidiaries:
(i) with respect to the Company, all principal of the loans
outstanding under the Senior Credit Agreement, all interest thereon
(including any interest accruing after the date of any filing by the
Company of any petition in bankruptcy or the commencing of any
bankruptcy, insolvency or similar proceedings with respect to the
Company whether or not the same is allowed as a claim in any such
proceeding) and all other amounts outstanding thereunder, including all
reimbursement obligations in respect of letters of credit thereunder,
expenses (including, without limitation, attorneys' fees), indemnities
and penalties and all commitment, facility and administrative, agency or
other similar fees payable by the Company from time to time under the
Senior Credit Documents, and any obligations of the Company in respect
of Hedging Agreements owing to one or more of the lenders under Senior
Credit Agreement and/or affiliates of such lenders (even if such lender
subsequently ceases to be a lender under the Senior Credit Agreement)
that are permitted by the terms of the Senior Credit Agreement;
(ii) with respect to the Company, additional Indebtedness in an
aggregate principal amount up to but not exceeding $15,000,000 under or
in respect of (x) the Senior Credit Agreement and (y) any other
instrument evidencing such Indebtedness; PROVIDED that, in the case of
clause (y) only, such Indebtedness is specifically designated in such
other instrument as "Senior Debt" for purposes of this Agreement;
(iii) with respect to the Company, additional Indebtedness under
or in respect of (x) the Senior Credit Agreement and (y) any other
instrument evidencing such Indebtedness; PROVIDED that (i) in the case
of clause (y) only, such Indebtedness is specifically designated in such
other instrument as "Senior Debt" for purposes of this Agreement and
(ii) after giving effect to the incurrence of such Indebtedness (and the
application of the proceeds thereof), the Senior Debt Incurrence Ratio
is less than or equal to 3.50 to 1.00;
(iv) with respect to any Subsidiary Guarantor, the Guarantee of
such Subsidiary Guarantor in respect of any Senior Debt of the Company;
and
(v) with respect to the Company, any and all refinancings,
replacements or refundings of any of the amounts referred to in clauses
(i), (ii) and (iii) above; PROVIDED that the refinancing, replacement or
refunding of Senior Debt incurred under said clause (iii) shall
constitute Senior Debt only to the extent that, after giving effect to
such refinancing, replacement or refunding (and the application of the
proceeds hereof), the Senior Debt Incurrence Ratio is less than or equal
to 3.50 to 1.00;
AMENDMENT NO. 7 TO NOTE PURCHASE AGREEMENT
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PROVIDED that the aggregate principal amount of Senior Debt
permitted under clauses (i) and (ii) above (exclusive of obligations
in respect of Hedging Agreements referred to in said clause (i)),
and any refinancing, replacement or refunding thereof permitted
under clause (v) above (including the maximum amount of the
aggregate commitments of the lenders to extend any revolving credit
facility thereunder) shall not exceed at any time $90,000,000, MINUS
the aggregate amount of (x) permanent reductions in revolving credit
commitments thereunder after the date of Amendment No. 7 to this
Agreement and (y) prepayments of any term loans made from time to
time in respect of the Senior Debt after the date of Amendment No. 7
to this Agreement (other than any such reduction or prepayment that
occurs as a result of any such refinancing, replacement or
refunding).
E. Section 8.03(d) of the Note Purchase Agreement shall be amended
by deleting the words "the Closing Date" in each place such text appears in said
Section and inserting the text "the date of Amendment No. 7 to this Agreement"
in lieu thereof.
F. Effective as of July 1, 2001, Section 8.09(c) of the Note
Purchase Agreement shall be deleted in its entirety (and all references to said
Section 8.09(c) contained in the Note Purchase Agreement shall be deleted).
G. Section 8.08 of the Note Purchase Agreement shall be amended by
deleting clause (ii) appearing in the proviso in said Section in its entirety
and inserting the text "(ii) the foregoing shall not apply to restrictions and
conditions existing and/or imposed under the Senior Credit Agreement or
otherwise identified on Schedule 8.01".
H. Section 8.09(a) of the Note Purchase Agreement shall be amended
in its entirety to read as follows:
"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 July 1, 2001
through September 30, 2001 1.90 to 1.00
From October 1, 2001
through December 31, 2001 2.05 to 1.00
From January 1, 2002
through March 31, 2002 2.25 to 1.00
AMENDMENT NO. 7 TO NOTE PURCHASE AGREEMENT
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From April 1, 2002
through June 30, 2002 2.40 to 1.00
From July 1, 2002
and at all times thereafter 2.50 to 1.00"
I. Section 8.09(b) of the Note Purchase Agreement shall be amended
in its entirety to read as follows:
"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, 2001
through December 31, 2001 4.75 to 1.00
From January 1, 2002
and at all times thereafter 4.50 to 1.00"
J. Section 9.01(e) of the Note Purchase Agreement shall be amended
by deleting the words "Article VII and" appearing therein.
K. Section 9.01 of the Note Purchase Agreement shall be amended by
inserting in the third line immediately following clause (m) thereof,
immediately after the words "the Required Lenders may", the words "(subject to
the provisions of Article XI)".
L. Clause (ii) of Section 11.02 of the Note Purchase Agreement shall
be amended by inserting the following text immediately after the words "Senior
Debt" at the end of subclause (y) thereof: "and (z) having other material terms
which are at least as favorable to the holders of the Senior Debt at the time
outstanding as the terms of the Subordinated Debt".
M. Section 11.03(a) of the Note Purchase Agreement shall be amended
by deleting the words "and the Senior Debt Representative shall have given
written notice of such non-payment (a "PAYMENT DEFAULT NOTICE")."
N. Section 11.03(d) of the Note Purchase Agreement shall be amended
in its entirety to read as follows:
"(d) The Company will not make any optional or
mandatory prepayment or repurchase of the Notes as provided for
under Section 3.01 and the Investors shall not accept any amount in
respect of such prepayment or repurchase to the extent that such
prepayment or repurchase is prohibited under the Senior Credit
AMENDMENT NO. 7 TO NOTE PURCHASE AGREEMENT
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Agreement, unless the lenders under the Senior Credit Agreement
shall have given their written consent thereto."
O. Section 11.12(a) of the Note Purchase Agreement shall be amended
in its entirety to read as follows:
"(a) Notwithstanding anything contained herein to the
contrary, during any period commencing on the occurrence of a Senior
Debt Payment Default or the date of receipt of a Payment Blockage
Notice under Section 11.03(b) and ending on the earlier of (i) the
date on which such Senior Debt Payment Default or the default that
is the subject of such Payment Blockage Notice, as the case may be,
is cured or waived or (ii) 90 days after the occurrence of such
Senior Debt Payment Default or the receipt by the Investors of such
Payment Blockage Notice, as the case may be, the Investors shall not
(A) accelerate the Notes as provided in Section 9.01, (B) initiate
any judicial proceeding or action to collect the Notes or (C)
initiate any case, proceeding or other action in respect of any
Obligor of the type referred to in clause (a) or (b) of Section
11.02 unless, prior to the expiration of such period, (x) the holder
or holders (or their respective agent(s)) of any Senior Debt shall
take any action of the type referred to in clauses (A), (B) and (C)
above in respect of such Senior Debt or (y) any Senior Debt and/or
the Subordinated Debt shall have become automatically due payable in
accordance with their respective terms."
Section 3. WAIVERS. 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,
2001 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. 7).
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.
7 (except that (i) certain of the indebtedness listed in Schedule 6.12 to the
Note Purchase Agreement has been paid off 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 8,651,125,
(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
8.02 shall be deemed to refer to Schedule 8.02 to this Amendment No. 7); and (b)
(after giving effect to the waivers under Section 3 above) no Default has
occurred and is continuing.
AMENDMENT NO. 7 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 waivers under the Note Purchase
Agreement set forth in said Section 3, shall become effective, as of the date
hereof (except as provided in Section 2.C above), upon the satisfaction of the
following conditions:
(a) AMENDMENT NO. 7. The execution and delivery of one or more
counterparts of this Amendment No. 7 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. 7;
by such execution and delivery by the Required Investors, the Required
Investors consent under Section 8.10 of the Note Purchase Agreement to the
extension of the final maturity date of the loans under the Senior Credit
Agreement to not later than September 30, 2003.
(b) AMENDMENT AND RESTATEMENT OF SENIOR CREDIT AGREEMENT. Receipt by
the Investors of a copy of the Second Amended and Restated Revolving
Credit Agreement dated as of or about the date of this Amendment No. 7, 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. 7 prior to 12:00 noon (New
York City time) on September 24, 2001 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. 7 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. 7 by signing any such
counterpart. This Amendment No. 7 shall be governed by, and construed in
accordance with, the law of the State of New York.
AMENDMENT NO. 7 TO NOTE PURCHASE AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 7 to be duly executed and delivered as of the day and year first above
written.
NUCO2 INC.
By: XXXX X. XXXXXXXX
--------------------
Title: General Counsel
SUBSIDIARY GUARANTORS
---------------------
NUCO2 ACQUISITION CORP.
By: XXXX X. XXXXXXXX
--------------------
Title: Vice President
XXXX COMPRESSED GASES, INC.
By: XXXX X. XXXXXXXX
--------------------
Title: Vice President
AMENDMENT NO. 7 TO NOTE PURCHASE AGREEMENT
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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 XXXXXXX
------------------
Title: 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: XXXX XXXXX
--------------
Title: Managing Director
AMENDMENT NO. 7 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 XXXXXX
-----------------
Title: Group Vice President
AMENDMENT NO. 7 TO NOTE PURCHASE AGREEMENT
SCHEDULE 8.02
LIENS
1. Liens pursuant to the Senior Credit Agreement.
2. UCC-1 Financing Statement
Secured Party: IBM Credit Corporation
Debtor: NuCo2 Inc.
3. UCC-1 Financing Statement
Secured Party: Toyota Motor Credit Corporation
Debtor: NuCo2 Inc.
4. Judgment for $2,558.29
Plaintiff: Climate Service Inc.
Defendant: NuCo2 Inc.
5. UCC-1 Financing Statement
Secured Party: Farmers & Merchants
Debtor: Xxxx Compressed Gases, Inc.
SCHEDULE 8.02
