Exhibit 10.16
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ dated as of May 12, 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 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. 5, 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):
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"Consolidated Net Worth" means, as of the date of determination, the
sum of, without duplication, (a) total shareholders' equity of the Company
and its Subsidiaries on a consolidated basis, determined in accordance
with GAAP, and (b) the 8% Convertible Preferred Stock.
"8% Convertible Preferred Stock" means the Company's 8% Cumulative
Convertible Preferred Stock, no par value, having an aggregate initial
liquidation preference of $5,000,000.
C. The definition of "Indebtedness" in Section 1.01 of the Note
Purchase Agreement shall be amended by inserting a new sentence at the end
thereof to read as follows: "Notwithstanding the foregoing, "Indebtedness" shall
exclude the 8% Convertible Preferred Stock."
D. Section 8.05 of the Note Purchase Agreement shall be amended in
its entirety to read as follows:
"SECTION 8.05 Restricted Payments. The Company will not, and will
not permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except (a) the
Company may declare and pay dividends with respect to its capital stock
payable solely in additional shares of its common stock, (b) the Company
may make Restricted Payments pursuant to and in accordance with stock
option plans or other benefit plans for management or employees of the
Company and its Subsidiaries, (c) the Company may repurchase or redeem
shares of any class of capital stock of the Company issued pursuant to and
in accordance with stock option plans or other benefit plans for
management or employees or under other option plans of the Company not
exceeding $1,000,000 in the aggregate, (d) the Company may declare and pay
dividends with respect to its capital stock in an aggregate amount not
exceeding the net proceeds of any equity issuance by the Company after the
Closing Date (other than the 8% Convertible Preferred Stock) (minus the
aggregate amount of any Investments made from such proceeds under Section
8.04(a)(viii)) and (e) the Company may accrue and cumulate (but not pay,
except as permitted under clause (d) above) cash dividends on the 8%
Convertible Preferred Stock."
E. Section 8.09 of the Note Purchase Agreement shall be amended in
its entirety to read as follows:
"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:
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Period Ratio
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From April 1, 1999
through March 31, 2000 1.25 to 1.00
From April 1, 2000
through June 30, 2000 1.15 to 1.00
From July 1, 2000
through September 30, 2000 1.25 to 1.00
From October 1, 2000
through December 31, 2000 1.35 to 1.00
From January 1, 2001
through March 31, 2001 1.50 to 1.00
From April 1, 2001
through June 30, 2001 1.70 to 1.00
From July 1, 2001
through September 30, 2001 1.90 to 1.00
From October 1, 2001
through December 31, 2001 2.15 to 1.00
From January 1, 2002
through March 31, 2002 2.25 to 1.00
From April 1, 2002
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
From April 1, 2000
through June 30, 2000 6.00 to 1.00
From July 1, 2000
through September 30, 2000 5.60 to 1.00
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From October 1, 2000
through December 31, 2000 5.25 to 1.00
From January 1, 2001
through March 31, 2001 5.00 to 1.00
From April 1, 2001
through June 30, 2001 4.75 to 1.00
From July 1, 2001
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) (other than the 8%
Convertible Preferred Stock) made by the Company for each fiscal quarter
ending on or after September 30, 1997."
Section 3. Waiver. Subject to the satisfaction of the conditions
specified in Section 4 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, 2000 with the requirements under Section 8.09(b) of the Note Purchase
Agreement (as in effect immediately prior to the effectiveness of this Amendment
No. 5).
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.
5 (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 7,274,682
and (iii) the number of outstanding options granted under the Company's stock
option plans has changed); and (b) (after giving effect to the waiver under
Section 3 above) no Default has occurred and is continuing.
Section 5. Conditions Precedent. As provided in Sections 2 and 3
above, 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:
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(a) Amendment No. 5. The execution and delivery of one or more
counterparts of this Amendment No. 5 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. 5.
(b) Third Amendment to Senior Credit Agreement. Receipt by the
Investors of a copy of the Third Amendment to the Senior Credit Agreement,
in substantially the form heretofore delivered to each of the Investors,
as executed by the parties thereto.
(c) 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. 5 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. 5 by signing any such
counterpart. This Amendment No. 5 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. 5 to be duly executed and delivered as of the day and year first above
written.
NUCO2 INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: General Counsel, Secretary
SUBSIDIARY GUARANTORS
NUCO2 ACQUISITION CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
▇▇▇▇ COMPRESSED GASES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
INVESTORS
CHASE CAPITAL INVESTMENTS, L.P.
By Chase Capital Partners,
its Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner - Mezzanine
DK ACQUISITION PARTNERS, L.P.
By ▇.▇. ▇▇▇▇▇▇▇▇ & Co.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Partner
EMPIRE INSURANCE COMPANY,
as executed on their behalf by
their Investment Manager,
Cohanzick Management, L.L.C.
By_________________________
Title:
ORIX USA CORPORATION
By: /s/____________________
Title: Executive Vice President
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PAINEWEBBER HIGH INCOME FUND,
a series of PaineWebber Managed Investments
Trust
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
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Title: Vice President and Secretary
SUNTRUST BANKS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Group Vice President
