AMENDMENT NO. 6 TO CREDIT AGREEMENT
Exhibit
10.1
EXECUTION
COPY
AMENDMENT
NO. 6 TO CREDIT AGREEMENT
AMENDMENT
NO. 6 TO CREDIT AGREEMENT
dated as of
May 3, 2007 (this “Amendment”)
among (a)
Cardtronics, Inc., a Delaware corporation (the “Borrower”),
(b)
Cardtronics, LP, a Delaware limited partnership, Cardtronics GP, Inc., a
Delaware corporation, and Cardtronics LP, Inc., a Delaware corporation
(collectively, the “Guarantors”),
(c) the
lenders party to the Credit Agreement referred to below (the “Lenders”)
and (d)
BNP Paribas, as administrative agent (the “Administrative
Agent”)
for the
Lenders.
PRELIMINARY
STATEMENTS:
1. The
Borrower, the Guarantors, the Lenders, the Administrative Agent and others
have
entered into a Third Amended and Restated First Lien Credit Agreement dated
as
of May 17, 2005, as amended by Amendment No. 1 to Credit Agreement dated
as of
July 6, 2005, Amendment No. 2 to Credit Agreement dated as of August 5, 2005,
Amendment No. 3 to Credit Agreement dated as of November 17, 2005, Amendment
No.
4 to Credit Agreement dated as of February 14, 2006 and Amendment No. 5 to
Credit Agreement dated as of September 29, 2006 (as so amended, the
“Credit
Agreement”;
capitalized terms used herein and not otherwise defined in this Amendment
being
used herein as defined in the Credit Agreement);
2. The
Borrower
has requested that the Lenders amend the Credit Agreement as provided herein;
and
3. The
Lenders
have agreed, subject to the terms and conditions hereinafter set forth, to
amend
the Credit Agreement as set forth below;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged,
the
parties hereto hereby agree as follows:
SECTION
1. Amendments
to Credit Agreement.
Upon, and
subject to, the satisfaction of the conditions precedent set forth in Section
2
below, the Credit Agreement is hereby amended as follows:
(a) Section
1.01
of the Credit Agreement is amended by adding the following definitions in
alphabetical order:
“‘Owned
Percentage’
means,
in
the case of any Subsidiary that is not a Wholly-Owned Subsidiary, the percentage
of the Equity Interests therein owned directly or indirectly by the Borrower
or
any Subsidiary of the Borrower.”
“‘Wholly-Owned
Subsidiary’
means
a
Subsidiary of the Borrower all of the Equity Interests in which are owned
directly or indirectly by the Borrower.”
(b) The
definition of “Capital
Expenditures”
in
Section
1.01 of the Credit Agreement is amended by inserting the following at the
end
thereof:
“provided
that
expenditures that would otherwise constitute Capital Expenditures of a
Subsidiary that is not a Wholly-Owned Subsidiary shall only be included in
an
amount equal to the Owned Percentage of such Subsidiary”.
(c) The
definition of “EBITDA”
in
Section
1.01 of the Credit Agreement is amended by inserting the following at the
end
thereof:
“provided
that, in
the case of any consolidated Subsidiary of the Borrower that is not a
Wholly-Owned Subsidiary, the amount included in the calculation of EBITDA
in
respect of any such items or any components thereof shall be the Owned
Percentage of the amount that would otherwise be included in the absence
of this
proviso”.
(d) The
grid in
the definition of “Margin”
in
Section
1.01 of the Credit Agreement is amended and replaced in its entirety by the
following grid:
|
Total
Debt to Acquisition
EBITDA
Ratio
|
Commitment
Fee
|
Applicable
Margin for LIBOR Rate Advances
|
Letter
of Credit Fee
|
Applicable
Margin for Alternate Base Rate Advances
|
|
Less
than 3.0:1.0
|
0.25%
|
1.75%
|
1.75%
|
1.00%
|
|
Less
than 3.75:1.0 but greater than or equal to 3.0:1.0
|
0.25%
|
2.00%
|
2.00%
|
1.25%
|
|
Less
than 4.5:1.0 but greater than or equal to 3.75:1.0
|
0.25%
|
2.25%
|
2.25%
|
1.50%
|
|
Less
than 5.25:1.0 but greater than or equal to 4.5:1.0
|
0.30%
|
2.50%
|
2.50%
|
1.75%
|
|
Greater
than 5.25:1.0
|
0.35%
|
2.75%
|
2.75%
|
2.00%
|
(e) The
definition of “Total
Debt”
in
Section
1.01 of the Credit Agreement is amended by inserting the following at the
end
thereof:
“provided
that the
amount included in respect of any such Indebtedness, obligations or guarantees
of any consolidated Subsidiary of the Borrower that is not a Wholly-Owned
Subsidiary, shall be the Owned Percentage thereof, unless the Borrower or
any
Wholly-Owned Subsidiary guaranties a greater percentage than the Owned
Percentage, in which case the amount included in respect of such Indebtedness,
obligations or guarantees of such consolidated Subsidiary of the Borrower
shall
be the percentage guarantied”.
(f) Section
7.01(a) of the Credit Agreement is amended by deleting the phrase at the
end
thereof beginning with the words “and a narrative” through the end of such
Section and inserting the following in lieu thereof:
“provided
that,
notwithstanding the foregoing, so long as the Borrower is required to file
form
10-Q with the Securities and Exchange Commission for any fiscal quarter,
the
Borrower shall furnish or cause to be furnished to each Lender, in lieu of
the
quarterly financial statements otherwise required by this Section 7.01(a)
in
respect of such quarter, a copy of such form 10-Q, in each case on or before
the
date on which the same is required to be filed (including all applicable
extensions allowed by the Securities Exchange Commission) with the Securities
and Exchange Commission for such quarter”.
(g) Section
7.01(b) of the Credit Agreement is amended by inserting the following at
the end
thereof:
“provided
that,
notwithstanding the foregoing, so long as the Borrower is required to file
form
10-K with the Securities and Exchange Commission for any fiscal year, the
Borrower shall furnish or cause to be furnished to each Lender, in lieu of
the
financial statements for such year otherwise required by this Section 7.01(b)
in
respect of such year, a copy of such form 10-K, in each case on or before
the
date on which the same is required to be filed (including all applicable
extensions allowed by the Securities Exchange Commission) with the Securities
and Exchange Commission for such year”.
(h) Section
7.01(c) of the Credit Agreement is amended by inserting the following new
paragraph at the end thereof:
“Anything
contained herein to the contrary notwithstanding, the Borrower shall be deemed
to be in compliance with the provisions of Section 7.01(c)(i), (ii), (iv),
(viii) and (ix) if and to the extent that (A) the Borrower is required to
file
form 8-K with the Securities and Exchange Commission under the Commission’s
rules and regulations, and (B) properly and timely files (including all
applicable extensions allowed by the Securities Exchange Commission) such
form
8-K in respect of any applicable events and furnishes copies thereof to the
Lenders on or before the date on which the same is required to be
filed.”
(i) Section
7.01(h) of the Credit Agreement is hereby deleted in its entirety.
(j) Section
7.09
of the Credit Agreement is hereby amended by inserting the following at the
conclusion of the parenthetical in line 14 of such Section 7.09:
“(and
in the
case of any Foreign Subsidiary that is a non-Wholly Owned Subsidiary, the
Owned
Percentage if such percentage is less than the percentages required to be
pledged under this Section 7.09)”.
(k) Section
8.03
of the Credit Agreement is amended by inserting the following paragraph at
the
end thereof:
“For
the
purposes of calculating the amount of Indebtedness outstanding of any non-Wholly
Owned Subsidiary under this Section 8.03, the amount shall be the Indebtedness
of such non-Wholly Owned Subsidiary multiplied by the Owned Percentage unless
the Borrower or any Wholly-Owned Subsidiary guaranties a greater percentage
of
the Indebtedness of such non-Wholly Owned Subsidiary than the Owned Percentage,
in which case the amount in respect of such Indebtedness shall be the
Indebtedness of such non-Wholly Owned Subsidiary multipled by the percentage
guarantied.”
(l) Section
8.05(i) of the Credit Agreement is amended by deleting “5,000,000” at the end
thereof and inserting in its place “10,000,000”.
(m) Section
8.13(a) of the Credit Agreement is amended to revise the Scheduled Capital
Expenditures for each Test Period ending on or after June 30, 2007 to be
$60,000,000.
SECTION
2. Conditions
of Effectiveness of Amendment. The
amendments to the Credit Agreement set forth in Section 1 shall become effective
on the date (the “Effective
Date”)
when the
Administrative Agent shall have received counterparts of this Amendment executed
by (i) the Borrower and each Loan Party, (ii) the Administrative Agent, and
(iii) each of the Lenders, or, as to any of the foregoing parties, advice
satisfactory to the Administrative Agent that each of the foregoing parties
has
executed this Amendment.
SECTION
3. Representations
and Warranties.
The
Borrower represents and warrants as follows:
(a) The
execution, delivery and performance by each of the Borrower and each of the
other Loan Parties of this Amendment and the consummation of the transactions
contemplated hereby are within its corporate powers, have been duly authorized
by all necessary corporate action and do not contravene (i) its charter or
by-laws or (ii) any law or any contractual restriction binding on or affecting
it the contravention of which would be reasonably likely to have a Material
Adverse Effect.
(b) After
giving
effect to this Amendment, the representations and warranties contained in
each
of the Loan Documents are correct in all material respects on and as of the
date
hereof as though made on and as of such date (other than any such
representations or warranties that, by their terms, refer to a specific date,
in
which case as of such specific date).
(c) After
giving
effect to this Amendment, no event shall have occurred and be continuing
that
constitutes a Default.
SECTION
4. Reference
to and Effect on the Credit Agreement and the Loan Documents.
(a) On
and after
the effectiveness of this Amendment, each reference in the Credit Agreement
to
“this Agreement”, “hereunder”, “hereof” or words of like import referring to the
Credit Agreement, and each reference in the Notes and each of the other Loan
Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like
import referring to the Credit Agreement, shall mean and be a reference to
the
Credit Agreement, as amended by this Amendment.
(b) Each
of the
Credit Agreement, the Notes and each of the other Loan Documents, as
specifically amended by this Amendment, is and shall continue to be in full
force and effect and is hereby in all respects ratified and confirmed. Without
limiting the generality of the foregoing, the Guaranty does and shall continue
to guarantee the Guaranteed Obligations, in each case, as amended by this
Amendment.
(c) The
execution, delivery and effectiveness of this Amendment shall not, except
as
expressly provided herein, operate as a waiver of any right, power or remedy
of
any Lender or the Administrative Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents. On and
after
the effectiveness of this Amendment, this Amendment shall for all purposes
constitute a Loan Document.
SECTION
5. Execution
in Counterparts.
This
Amendment may be executed in any number of counterparts and by different
parties
hereto in separate counterparts, each of which when so executed shall be
deemed
to be an original and all of which taken together shall constitute but one
and
the same agreement. Delivery of an executed counterpart of a signature page
to
this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION
6. Governing
Law.
This
Amendment shall be governed by, and construed in accordance with, the laws
of
the State of New York.
[The
remainder of this page is intentionally left blank]
IN
WITNESS
WHEREOF, the parties hereto have caused this Amendment to be executed by
their
respective officers thereunto duly authorized, as of the date first above
written.
Borrower
CARDTRONICS,
INC.
By
/s/
J.
Xxxxx Xxxxxxxx
Name:
J.
Xxxxx Xxxxxxxx
Title: Chief
Financial Officer
Guarantors
CARDTRONICS,
LP
By: CARDTRONICS
GP, INC.,
its
general
partner
By
/s/
J.
Xxxxx Xxxxxxxx
Name:
J.
Xxxxx Xxxxxxxx
Title: Chief
Financial Officer
CARDTRONICS
GP, INC.
By
/s/
J.
Xxxxx Xxxxxxxx
Name:
J.
Xxxxx Xxxxxxxx
Title: Chief
Financial Officer
CARDTRONICS
LP, INC.
By
/s/
Xxxxx
Xxxxxxxxxx
Name:
Xxxxx
Xxxxxxxxxx
Title: President
BNP
PARIBAS, as Administrative Agent
By
/s/
Xxxx
Xxxxxxxxx
Name:
Xxxx
Xxxxxxxxx
Title: Director
By
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title: Vice
President
Lenders:
BNP
PARIBAS, as Lender
By
/s/
Xxxx
Xxxxxxxxx
Name:
Xxxx
Xxxxxxxxx
Title: Director
By
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title: Vice
President
Lenders:
Bank
of America, N.A.
By
/s/
Xxxxx
X. Xxxxxx
Name:
Xxxxx
X. Xxxxxx
Title: Senior
Vice
President
General
Electric Capital Corporation
By
/s/
Xxxxxxx Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title: Duly
Authorized Signatory
JPMorgan
Chase Bank N.A.
By
/s/
Xxxxxxx Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title: Vice
President
Amegy
Bank National Association
By
/s/
Xxxxx
X. Xxxxxxxxx
Name:
Xxxxx
X. Xxxxxxxxx
Title: Vice
President
Compass
Bank
By
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx
X. Xxxxx
Title: Vice
President
Xxxxx
Fargo Bank, N.A.
By
/s/
Xxxx
Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title: Vice
President
Allied
Irish Bank, plc
By
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title: Vice
President
By
/s/
Xxxxxx Xxxxxxxxx
Name:
Xxxxxx
Xxxxxxxxx
Title: Senior
Vice
President
