Exhibit 10.2
EXECUTION COPY
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ dated as of December 5, 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. 6, 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
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):
"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, (b) the 8% Convertible Preferred Stock and (c) the New Preferred
Stock.
"New Common Stock" means additional issuances of common stock, par
value $0.001 per share, of the Company of up to $10,000,000.
"New Preferred Stock" means additional issuances of preferred stock, no
par value, of the Company of up to $10,000,000.
C. The definition of "Indebtedness" in Section 1.01 of the Note
Purchase Agreement shall be amended by replacing the last sentence thereof in
its entirety to read as follows: "Notwithstanding the foregoing, "Indebtedness"
shall exclude the 8% Convertible Preferred Stock and the New 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 and the New 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 and the New Preferred Stock."
E. Section 8.09(c) of the Note Purchase Agreement shall be amended in
its entirety to read as follows:
"(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 and $10,000,000 in the aggregate of New
Common Stock and New Preferred Stock) made by the Company for each fiscal
quarter ending on or after September 30, 1997."
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 (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.
6 (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 7,275,015
and (iii) the number of outstanding options granted under the Company's stock
option plans has changed); and (b) no Default has occurred and is continuing.
Section 4. Conditions Precedent. As provided in Section 2 above, the
amendments to the Note Purchase Agreement set forth in said Section 2 shall
become effective, as of the date hereof, upon the satisfaction of the following
conditions:
(a) Amendment No. 6. The execution and delivery of one or more
counterparts of this Amendment No. 6 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. 6.
(b) Other Documents. Receipt by the Investors of such other
documents as any Investor may reasonably request.
Section 5. Miscellaneous. Except as herein provided, the Note Purchase
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 6 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. 6 by signing any such counterpart. This
Amendment No. 6 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. 6
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: General Counsel, Secretary
▇▇▇▇ COMPRESSED GASES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: General Counsel, Secretary
INVESTORS
CHASE CAPITAL INVESTMENTS, L.P.
By Chase Capital Partners,
its Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: General Partner - Mezzanine
DK ACQUISITION PARTNERS, L.P.
By ▇.▇. ▇▇▇▇▇▇▇▇ & Co.,
its general partner
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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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_________________________
Title:
PAINEWEBBER HIGH INCOME FUND,
a series of PaineWebber Managed Investments
Trust
By_________________________
Title:
SUNTRUST BANKS, INC.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Group Vice President