EXHIBIT 10.71
CONSENT AND AMENDMENT NO. 2 TO
SUBORDINATION AND INTERCREDITOR AGREEMENT
THIS CONSENT AND AMENDMENT NO. 2 TO SUBORDINATION AND INTERCREDITOR
AGREEMENT (the "Amendment") is dated as of February 13, 2004, but is effective
as of December 31, 2003, and is entered into among Audax Mezzanine Fund, L.P.,
Audax Trust Co-Invest, L.P., Audax Co-Invest, L.P., The Royal Bank of Scotland
plc, New York Branch, Upper Columbia Capital Company, LLC, State Street Bank and
Trust Company, as Trustee for the DuPont Pension Trust and Wilton Private Equity
Fund, LLC (collectively, "Subordinated Creditors"), American Coin Merchandising,
Inc. ("Company"), ACMI Holdings, Inc. ("Holdings") and Madison Capital Funding
LLC, as Agent (the "Agent") for the Senior Lenders.
R E C I T A L S:
A. The Company, the Agent and certain Senior Lenders were parties to a
Credit Agreement dated as of February 11, 2002 (the "Original Senior Credit
Agreement"). In connection therewith, the Subordinated Creditors, the Company,
Holdings and the Agent executed and delivered a certain Subordination and
Intercreditor Agreement dated as of February 11, 2002 (the "Subordination
Agreement").
B. The Company, the Agent and Senior Lenders are parties to an Amended
and Restated Credit Agreement dated as of April 15, 2003 (the "Amended Senior
Credit Agreement"), which amended and restated the Original Senior Credit
Agreement in its entirety.
C. On the date hereof, the Company, the Agent and Senior Lenders are
entering into an Amendment No. 1 to Amended and Restated Credit Agreement of
even date herewith (the "Senior Credit Agreement Amendment"), which will amend
certain provisions of the Amended Senior Credit Agreement. In connection
therewith, the parties hereto have agreed to amend the Subordination Agreement
in the manner provided hereinbelow. Unless defined herein, capitalized terms
used herein shall have the meanings provided to such terms in the Amended Senior
Credit Agreement.
1. Consent of Agent. Agent hereby acknowledges its consent to the
amendments to the Audax A Tranche Subordinated Debt each in the form of Exhibit
A attached hereto.
2. Consent of Subordinated Creditors. Subordinated Creditors hereby
acknowledge their consent to the Senior Credit Agreement Amendment in the form
of Exhibit B attached hereto.
3. Amendment. Effective upon the effectiveness of the Senior Credit
Agreement Amendment, the Subordination Agreement is hereby amended as follows:
(a) The definition of the term "Senior Debt" is hereby amended by
deleting therefrom the amount "$8,200,000" and inserting in its place the amount
of "$8,719,250".
4. References. Any references to the Subordination Agreement in any
document, agreement or instrument executed in connection with the Original
Senior Credit Agreement, Amended Senior Credit Agreement or the Subordinated
Purchase Agreement shall be deemed to be a reference to the Subordination
Agreement, as amended by this Amendment.
5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument.
6. Effect. The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions of the Subordination
Agreement and shall not be deemed to be a consent to the modification or waiver
of any other term or condition of the Subordination Agreement. Except as
expressly modified and superseded by this Amendment, the terms and provisions of
the Subordination Agreement are ratified and confirmed and shall continue in
full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers on the
date first written above.
SUBORDINATED CREDITORS:
AUDAX MEZZANINE FUND, L.P.,
a Delaware limited partnership
By: Audax Mezzanine Business, L.P.
Its: General Partner
By: Audax Mezzanine Business, L.L.C.
Its: General Partner
By:
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Xxxxx X. Xxxxx
Its: Authorized Member
AUDAX CO-INVEST, L.P.
By: 101 Huntington Holdings, LLC
Title: General Partner
By:
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Name: Xxxxx X. Xxxxx
Its: Authorized Member
AUDAX TRUST CO-INVEST, L.P.
By: 101 Huntington Holdings, LLC
Title: General Partner
By:
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Name: Xxxxx X. Xxxxx
Its: Authorized Member
THE ROYAL BANK OF SCOTLAND PLC,
NEW YORK BRANCH
By:
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Its:
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Signature Page - Consent and Amendment No. 2 to Subordination and Intercreditor
Agreement
UPPER COLOMBIA CAPITAL
COMPANY, LLC
By:
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Its:
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STATE STREET BANK AND TRUST
COMPANY, as Trustee for the DuPont
Pension Trust
By:
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Name: Xxxxxx X. Xxxxxx
Its: Vice President
WILTON PRIVATE EQUITY FUND, LLC
By: Wilton Asset Management, L.L.C.
Its: Manager
By:
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Its:
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COMPANY:
AMERICAN COIN MERCHANDISING, INC.,
a Delaware corporation
By:
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Its:
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Signature Page - Consent and Amendment No. 2 to Subordination and Intercreditor
Agreement (continued)
HOLDINGS:
ACMI HOLDINGS, INC.,
formerly known as CRANE MERGERCO
HOLDINGS, INC., a Delaware corporation
By:
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Its:
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AGENT:
MADISON CAPITAL FUNDING LLC,
a Delaware limited liability company, as
Agent
By:
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Its:
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Signature Page - Consent and Amendment No. 2 to Subordination and Intercreditor
Agreement (continued)
