SUPPLEMENTAL INDENTURE DELIVERED BY ATM NATIONAL, LLC A SUBSEQUENT GUARANTOR
Exhibit 4.4
DELIVERED BY ATM NATIONAL, LLC
A SUBSEQUENT GUARANTOR
Supplemental Indenture (this “Supplemental Indenture”), dated as of December 22, 2005, among
ATM National, LLC, a Delaware limited liability company (the “Guaranteeing Subsidiary”), a
subsidiary of Cardtronics, Inc., a Delaware corporation (or its permitted successor) (the
“Company”), and Xxxxx Fargo Bank, National Association, a nationally chartered banking association
(or its permitted successor), as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company and the other Guarantors party thereto have heretofore executed and
delivered to the Trustee an indenture (the “Indenture”), dated as of August 12, 2005 providing for
the issuance of the Company’s 9 1/4% Senior Subordinated Notes due 2013 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall, subject to Article Twelve of the Indenture, unconditionally
guarantee the Notes on the terms and conditions set forth therein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors, the
Guaranteeing Subsidiary and the Trustee agree as follows for the equal and ratable benefit of the
Holders of the Notes:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. Agreement to Guarantee.
(a) Subject to Article Twelve of the Indenture, the Guaranteeing Subsidiary, jointly and
severally with all other Guarantors, fully and unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of
the Company hereunder or thereunder, that:
(i) the principal of, premium, if any, and accrued and unpaid interest and Additional
Interest, if any, on the Notes will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue principal of, premium,
if any, and interest and Additional Interest, if any, on the Notes, if
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lawful (subject in all cases to any applicable grace period provided herein), and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, the same will be promptly paid in full when due in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same immediately. The Guaranteeing
Subsidiary agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guaranteeing Subsidiary hereby agrees that, to the maximum extent permitted under
applicable law, its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor.
(c) The Guaranteeing Subsidiary, subject to Section 6.06 of the Indenture, hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes and the Indenture.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any custodian, trustee, liquidator or other similar official acting in
relation to any of the Company or the Guarantors, any amount paid by any of them to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
(e) The Guaranteeing Subsidiary agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(f) The Guaranteeing Subsidiary agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six of the Indenture for the purposes of the Note
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article Six of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors for the
purpose of the Note Guarantee.
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(g) The Guaranteeing Subsidiary shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of the Holders under the
Note Guarantee.
(h) The Guaranteeing Subsidiary confirms, pursuant to Section 12.02 of the Indenture, that it
is the intention of such Guaranteeing Subsidiary that the Note Guarantee not constitute (i) a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to the Note Guarantee or (ii) an unlawful distribution under any applicable state law
prohibiting shareholder distributions by an insolvent subsidiary to the extent applicable to the
Note Guarantee. To effectuate the foregoing intention, the Guaranteeing Subsidiary and the Trustee
hereby irrevocably agree that the obligations of the Guaranteeing Subsidiary will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guaranteeing Subsidiary that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under Article Twelve of the
Indenture, result in the obligations of the Guaranteeing Subsidiary under the Note Guarantee not
constituting a fraudulent transfer or conveyance or such an unlawful shareholder distribution.
3. Execution and Delivery. The Guaranteeing Subsidiary agrees that the Note Guarantee
shall remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of the Note Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc., on Certain Terms. The Guaranteeing
Subsidiary may not sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into, any Person other than as set forth in Section 12.04 of the
Indenture.
5. Release. The Guaranteeing Subsidiary’s Note Guarantee shall be released as set
forth in Section 12.05 of the Indenture.
6. No Recourse Against Others. Pursuant to Section 14.07 of the Indenture, no
director, officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary shall have
any liability for any obligations of the Guaranteeing Subsidiary under the Notes, the Indenture,
this Supplemental Indenture, the Note Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. This waiver and release are part of the
consideration for the Note Guarantee.
7. Subordination of Note Guarantee. Payments on the Note Guarantees are subordinated
to the extent and manner provided for in Article 13 of the Indenture, to the prior payment in full
in cash or Cash Equivalents of all Senior Debt of the Guarantors, including Senior Debt of the
Guarantors incurred after the date of the Indenture.
8. NEW YORK LAW TO GOVERN. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
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9. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
10. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
11. Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and
the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
| ATM NATIONAL, LLC |
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| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxx | |||
| Title: | President | |||
| XXXXX FARGO BANK, National Association, as Trustee |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxxx | ||||
| Title: Vice President | ||||
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