10.67
CONSENT, WAIVER AND AMENDMENT
This CONSENT, WAIVER AND AMENDMENT ("Amendment") to the
Purchase Agreement ("the Purchase Agreement") dated as of February 11, 2002, by
and among ACMI HOLDINGS, INC., a Delaware corporation ("Holdings"), AMERICAN
COIN MERCHANDISING, INC., a Delaware corporation (the "Company") and the
Purchasers named therein (the "Purchasers"), is dated as of November 12, 2002,
and is entered into by and among Holdings, the Company and the Purchasers.
WITNESSETH:
WHEREAS, the Company acquired (the "Kiddie World Acquisition")
certain of the assets (the "Acquired Assets") of Kiddie World of America, Inc.
Missouri corporation (the "Seller") pursuant to an Asset Purchase and Sale
Agreement dated as of September 3, 2002, by and among the Company, the Seller
and Xxxxxx X. Xxxxxx; capitalized terms not otherwise defined herein have the
definitions provided therefor in the Purchase Agreement;
WHEREAS, Events of Default are in existence under Sections
11.01(c) and (d) of the Purchase Agreement as a result of the consummation of
the Kiddie World Acquisition, due to Holdings' and the Company's breach of (a)
Section 6.01(i) of the Purchase Agreement as a result of the Company not
providing prompt notice of the existence of a Default or Event of Default in the
form required by Section 6.01(i); (b) Section 8.04 of the Purchase Agreement
relating to the Company's incurrence of $1,125,000 of Indebtedness to the Seller
in connection with the consummation of the Kiddie World Acquisition (the "Seller
Debt"); (c) Section 8.08 of the Purchase Agreement with respect to the Company's
grant to the Seller of Liens against the Acquired Assets in order to secure the
Seller Debt; and (d) Section 8.15(xvi) of the Purchase Agreement relating to the
Company's consummation of the Kiddie World Acquisition without satisfaction of
the requirements thereof described on Schedule A hereto (each of the foregoing,
together with any other default under the Purchase Agreement resulting directly
and exclusively from the Kiddie World Acquisition, an "Existing Default" and
collectively, the "Existing Defaults"). Holdings and the Company have requested
that the Purchasers waive the Existing Defaults and consent to the Kiddie World
Acquisition; and
WHEREAS, the parties desire to amend the Purchase Agreement as
hereinafter set forth;
NOW THEREFORE, in consideration of the premises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intend to be
legally bound hereby, agree as follows:
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1. CONSENT. Subject to the satisfaction of the conditions set
forth in Section 4 below, the Purchasers hereby consent to the consummation by
the Company of the Acquisition.
2. WAIVER. Subject to the satisfaction of the conditions set
forth in Section 4 below, the Purchasers hereby waive the Existing Defaults
including, without limitation, satisfaction by the Company of the requirements
set forth in Section 8.15(xvi)(5) of the Purchase Agreement in connection with
the Kiddie World Acquisition. Upon the effectiveness of such waiver, the Kiddie
World Acquisition shall be deemed to be an Acquisition permitted pursuant to
Section 8.15(xvi) of the Purchase Agreement. This is a limited waiver and shall
not be deemed to constitute a waiver of any other Event of Default or any future
breach of the Purchase Agreement or any other requirements of any provision of
the Purchase Agreement and the Purchase Agreement shall continue in full force
and effect.
3. AMENDMENTS. Subject to the satisfaction of the conditions
set forth in Section 4 below, the Purchase Agreement is amended as follows:
(a) The definition of the term "Pro Forma EBITDA" contained in
Section 1 of the Purchase Agreement is amended and restated in its entirety, as
follows:
Pro Forma EBITDA means, with respect to any Restricted
Subsidiary, business or division acquired in an Acquisition or joint
venture Investment permitted to be made under Section 8.15 hereof, the
Attributable Percentage of EBITDA for such Restricted Subsidiary,
business, division or joint venture for the portion of the most recent
twelve (12) month period that fell prior to the consummation of such
Acquisition or Investment and for which financial statements are made
available to the Noteholders at the time of determination thereof,
adjusted by identifiable and verifiable actual or pro forma one-time
nonrecurring items, such as excess owner compensation, severance and
one-time transaction-related expenses of the acquired business, in each
case calculated by the Company and approved by the Required Holders,
which approval shall not be unreasonably withheld; provided that,
notwithstanding anything to the contrary contained herein, for each
month prior to September, 2002 included in any testing period, Pro
Forma EBITDA for the business acquired in the Kiddie World Acquisition
shall be deemed to equal $56,160.
(b) The definition of the term "Subordinated Indebtedness"
contained in Section 1.01 of the Purchase Agreement is amended and restated in
its entirety, as follows:
"Subordinated Indebtedness" means (a) the Trust Subordinated
Debt, (b) the Kiddie World Debt and (c) any other Indebtedness of the
Company
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that is subordinated in right of payment to the Notes or the
Guarantees, as applicable.
(c) Section 1.01 of the Purchase Agreement is amended to
include definitions of the terms, "Kiddie World", "Kiddie World Acquisition",
"Kiddie World Debt" and "Kiddie World Debt Documents" in alphabetical order, as
follows:
"Kiddie World" means Kiddie World of America, Inc., a Missouri
corporation.
"Kiddie World Acquisition" means the acquisition by the
Company of certain of the assets of Kiddie World pursuant to the Kiddie
World Debt Documents.
"Kiddie World Debt" means the Company's Debt to Kiddie World
in the principal amount of $1,125,000, evidenced by the Kiddie World
Debt Documents.
"Kiddie World Debt Documents" means, collectively, the certain
Note dated September 3, 2002 executed by the Company in favor of Kiddie
World and all other agreements, instruments and documents evidencing,
securing or otherwise relating to the Kiddie World Debt.
(d) Section 8.02 of the Purchase Agreement is amended by (i)
deleting the word "and" at the end of clause (vii) and (ii) amending and
restating clause (viii) thereof in its entirety as follows:
(viii) so long as no Event of Default exists or would result
therefrom, and so long as permitted under the subordination provisions
applicable thereto, the Company may make payments under the Trust
Preferred Guarantee of the obligations of the Trust under the Trust
Preferred Securities; and
(ix) so long as no Event of Default exists or would result
therefrom, the Company may make scheduled payments of principal and
interest in accordance with the terms of the Kiddie World Debt as in
effect on November 12, 2002.
(e) Section 8.04(i) of the Purchase Agreement is hereby
amended and restated in its entirety, as follows:
(i) Indebtedness represented by the Senior Debt, less (without
duplication) the amount of any Net Cash Proceeds of any Asset Sale used
to repay Indebtedness thereunder in accordance with Section 8.05;
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(f) Section 8.04 of the Purchase Agreement is amended by (i)
deleting the word "and" at the end of clause (xi) thereof and (ii) amending and
restating clause (xii) thereof in its entirety, as follows:
(xii) the Kiddie World Debt in an aggregate outstanding
principal amount not at any time exceeding $1,125,000, together with
all accrued and unpaid interest thereon; and
(xiii) other Indebtedness, in addition to the Indebtedness
listed above, in an aggregate outstanding principal amount not at any
time to exceed $500,000, less the aggregate outstanding principal
amount of the Senarc Debt and the Kiddie World Debt at such time (but
in no event less than zero).
(g) Section 8.08 of the Purchase Agreement is amended by (i)
deleting the word "and" at the end of clause (xii) thereof and (ii) amending and
restating clause (xiii) thereof in its entirety, as follows:
(xiii) Liens on the assets acquired by the Company in
connection with the Kiddie World Acquisition that secure the Kiddie
World Debt; and
(xiv) Liens not otherwise permitted by this Section 8.08 so
long as (1) the Indebtedness secured by such Liens is permitted under
Section 8.04, (2) the aggregate outstanding principal amount of the
Indebtedness secured by such Liens does not exceed $250,000, less the
aggregate principal amount of the Senarc Debt and the Kiddie World Debt
at such time (but in no event less than zero) and (3) the aggregate
Fair Market Value (as of the date each such Lien is incurred) of the
assets subject thereto does not exceed $250,000, less the aggregate
Fair Market Value of the assets securing the Senarc Debt and the Kiddie
World Debt at the time that each of the Senarc Debt and Kiddie World
Debt were incurred (but in no event less than zero);
each clause (i) through (xiv) collectively referred to as "Permitted Liens" and
individually a "Permitted Lien."
(h) Clause (xii) of Section 8.15 of the Purchase Agreement is
hereby amended by deleting the amount "$600,000" in the fifth line thereof and
inserting in its place the amount "$630,000".
(i) Clause (ii) of Section 8.16 of the Purchase Agreement is
hereby amended and restated in its entirety, as follows:
(ii) any provisions of any agreement, instrument or document
evidencing or securing any of the Subordinated Indebtedness, including
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without limitation, the Trust Subordinated Debt Documents, the Trust
Preferred Guarantee and the Kiddie World Debt Documents,
(j) Section 8.20.4 of the Purchase Agreement is hereby amended
by increasing the Capital Expenditure limitation for Fiscal Year 2002 from
"$7,500,000" to "$8,500,000".
4. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment is subject to the following conditions precedent (unless specifically
waived in writing by the Purchasers), each to be in form and substance
satisfactory to the Purchasers; the execution of this Amendment by the
Purchasers shall constitute the Purchasers' acknowledgment that such conditions
(other than the conditions set forth below in subsections (d) and (f) of this
Section 4) have been satisfied or waived:
(a) the Purchasers shall have received a fully executed copy
of this Amendment signed by the Company and Holdings, and such other documents
and instruments as the Purchasers may require;
(b) the Purchasers shall have received a fully executed copy
of a consent, waiver and amendment to the Credit Agreement (the "Credit
Agreement") dated as of February 11, 2002 by and among the Company, Madison, as
Agent, The Royal Bank of Scotland PLC, New York Branch, as Documentation Agent
and the financial institutions (the "Lenders") from time to time party to the
Credit Agreement, signed by the Company and the Lenders pursuant to which the
Lenders waive all defaults existing under the Credit Agreement which arise out
of the consummation of the Kiddie World Acquisition;
(c) the Purchasers shall have received executed copies of all
material documents, agreements and instruments pertaining to the Kiddie World
Acquisition;
(d) the Purchasers shall have received, for the pro rata
benefit of the Purchasers, an amendment fee equal to $25,000, which shall be
fully earned and nonrefundable when paid and the Company shall have reimbursed
the Purchasers for the legal fees and disbursements of Xxxxxx Xxxxxx & Xxxxxxx,
special counsel to the Purchasers;
(e) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments and other legal
matters incident thereto shall be satisfactory to the Purchasers and their
respective legal counsel; and
(f) No Default or Event of Default other than the Existing
Defaults shall have occurred and be continuing.
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5. REPRESENTATIONS AND WARRANTIES. To induce the Purchasers to
enter into this Amendment, the Company and Holdings, jointly and severally,
represent and warrant to each the Purchaser:
(a) that the execution, delivery and performance of this
Amendment has been duly authorized by all requisite corporate action on the part
of the Company and Holdings and that this Amendment has been duly executed and
delivered by the Company and Holdings; and
(b) that each of the representations and warranties set forth
in Section 5 of the Credit Agreement (other than those which, by their terms,
specifically are made as of certain date prior to the date hereof), as amended
pursuant to Schedule B hereto, are true and correct in all material respects as
of the date hereof.
6. SCOPE OF AMENDMENT. Except as specifically amended hereby,
the Purchase Agreement, shall remain unchanged. It is declared and agreed by
each of the parties hereto that the Purchase Agreement, subject to this
Amendment, shall continue, in full force and effect, and that the Amendment and
the Purchase Agreement shall be read as and shall constitute one document.
7. SEVERABILITY. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
8. REFERENCES. Any reference to the Purchase Agreement
contained in any document, instrument or Purchase Agreement executed in
connection with the Purchase Agreement shall be deemed to be a reference to the
Purchase Agreement as modified by this Amendment.
9. 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 agreement.
10. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAWS OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW
OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION
OTHER THAN SUCH STATE.
11. THIRD-PARTY RIGHTS. Nothing in this Amendment, express or
implied, shall give to any person other than the parties hereto, their
successors and assigns any benefit or any legal or equitable right, remedy or
claim under this Amendment;
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provided that the Company hereby agrees that the Purchasers are intended and
shall be third-party beneficiaries to the Subordination Agreement (the
"Subordinated Agreement") dated as of September 3, 2002, by and among the Seller
and the Company, and the Company shall not amend or otherwise modify or waive
any right under the Subordination Agreement without the prior written consent of
the Required Holders.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed under seal and delivered by their respective duly
authorized officers on the date first written above.
AMERICAN COIN MERCHANDISING, INC.
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Title President and Chief Executive Officer
ACMI HOLDINGS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Title President and Chief Executive Officer
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PURCHASERS:
AUDAX MEZZANINE FUND, L.P.
By: Audax Mezzanine Business, L.P.
Its: General Partner
By: Audax Mezzanine Business, L.L.C.
Its: General Partner
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
AUDAX CO-INVEST, L.P.
By: 101 Huntington Holdings, LLC
Title: General Partner
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
AUDAX TRUST CO-INVEST, L.P.
By: 101 Huntington Holdings, LLC
Title: General Partner
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
THE ROYAL BANK OF SCOTLAND PLC,
NEW YORK BRANCH
By: /s/ Una Corr
-----------------------------------------
Name: Una Corr
Title: Vice President
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UPPER COLOMBIA CAPITAL COMPANY, LLC
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Manager
STATE STREET BANK AND TRUST COMPANY,
as Trustee for the DuPont Pension Trust
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
WILTON PRIVATE EQUITY FUND, LLC
By: Wilton Asset Management, L.L.C.
its Manager
By: /s/ Xxxxxx X Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx X Xxxxxxxxx
Title: President
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