EXHIBIT 4.16
NINTH AMENDMENT TO CREDIT AGREEMENT
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This NINTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered into
as of March 22, 2002, by and among Coinstar, Inc., a Delaware corporation
("Borrower"), the financial institutions named on the signature pages hereof
(each, a "Lender" and collectively the "Lenders"), and Comerica Bank-California,
as Agent for the Lenders ("Agent"), with reference to the following facts:
A. Borrower, Agent, and Lenders are parties to that certain Credit
Agreement dated as of February 19, 1999, as amended (the "Credit Agreement").
B. The parties desire to further amend the Credit Agreement in accordance
with the terms of this Amendment.
NOW, THEREFORE, in consideration of the promises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein shall have
the same meanings as set forth in the Credit Agreement. All references to
"Imperial Bank" in the Loan Documents shall mean and refer to Comerica
Bank-California.
2. Amendments to Credit Agreement. The Credit Agreement is hereby amended
as follows:
(a) Section 2.2(a)(iv) is amended to read as follows:
(iv) Term Facility B Loans. Each Term Facility B Loan shall be
payable in sixteen (16) equal quarterly installments of principal, plus
accrued interest, payable on the thirteenth (13th) day of each March, June,
September and December, commencing on the first of such days to occur after
the date such Loan is made, and ending on the Term Facility B Maturity
Date, on which date the remaining outstanding principal amount of the Term
Facility B Loans, together with accrued interest thereon and any other
amounts owing under this Agreement shall be due and payable; provided
however, that if this Agreement is not amended in accordance with Section
9.1 to extend the Revolving Maturity Date beyond October 15, 2003, then the
remaining outstanding principal amount of the Term Facility B Loans,
together with accrued interest thereon and any other amounts owing under
this Agreement, shall be due and payable on the Revolving Maturity Date.
(b) The Term Facility B Note executed in connection with the Credit
Agreement is hereby amended to conform to the changes in the Credit Agreement
effected by this Amendment.
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3. Conditions to Effectiveness.
This Amendment shall become effective as of March 22, 2002 (the "Effective
Date"), only upon:
(a) receipt by the Agent of the following (each of which shall be in
form and substance satisfactory to the Agent and its counsel):
(i) counterparts of this Amendment duly executed on behalf of the
Borrower and the Lenders;
(ii) copies of resolutions of the Board of Directors or other
authorizing documents of the Borrower, authorizing the execution and
delivery of this Amendment;
(b) completion of such other matters and delivery of such other
agreements, documents and certificates as the Agent or any Lender may reasonably
request.
4. Representations and Warranties. In order to induce the Lenders to enter
into this Amendment, the Borrower represents and warrants to the Lenders that
the following statements are true, correct and complete as of the effective date
of this Amendment:
(a) Corporate Power and Authority. The Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement"). The
Certificate of Incorporation and Bylaws of the Borrower have not been amended
since the copies previously delivered to the Lenders.
(b) Authorization of Agreements. The execution and delivery of this
Amendment and the performance by the Borrower of the Amended Agreement have been
duly authorized by all necessary corporate action on the part of the Borrower.
(c) No Conflict. The execution and delivery by the Borrower of this
Amendment do not and will not contravene (i) any law or any governmental rule or
regulation applicable to the Borrower, except to the extent not resulting in a
Material Adverse Effect, (ii) the Certificate of Incorporation or Bylaws of the
Borrower, (iii) any order, judgment or decree of any court or other agency of
government binding on the Borrower, or (iv) any material agreement or instrument
binding on the Borrower, except to the extent not resulting in a Material
Adverse Effect.
(d) Governmental Consents. The execution and delivery by the Borrower of
this Amendment and the performance by the Borrower of the Amended Agreement do
not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body (except routine reports required
pursuant to the Securities and Exchange Act of 1934, as amended, which reports
will be made in the ordinary course of business).
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(e) Binding Obligation. This Amendment and the Amended Agreement have
been duly executed and delivered by the Borrower and are the binding obligations
of the Borrower, enforceable against the Borrower in accordance with their
respective terms, except in each case as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws and equitable principles relating to or affecting creditors' rights.
(f) Incorporation of Representations and Warranties From Credit
Agreement. Subject to compliance by Borrower with Section 5 of this Amendment,
the representations and warranties contained in Section 5.1 of the Credit
Agreement are correct on and as of the effective date of this Amendment as
though made on and as of such date (except to the extent they relate
specifically to any earlier date, in which case such representations and
warranties shall continue to have been correct as of such date).
(g) Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
5. Miscellaneous.
(a) Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(i) On and after the Effective Date, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of
like import referring to the Credit Agreement, and each reference in 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 Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of the
Agent or Lenders under the Credit Agreement or any of the other Loan
Documents.
(b) Fees and Expenses. All costs and expenses of the Agent and Lenders,
including, but not limited to, reasonable attorneys' fees, incurred by the Agent
and Lenders in the preparation and negotiation of this Amendment constitute
costs and expenses in connection with the amendment and restructuring of the
Loan Documents, and as such are payable by the Borrower in accordance with
Section 9.5 of the Credit Agreement.
(c) Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
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(d) Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(e) 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 and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[REMAINDER INTENTIONALLY LEFT BLANK]
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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:
COINSTAR, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Title: CFO
AGENT:
COMERICA BANK-CALIFORNIA
By: /s/ Xxxx Xxxxxxx
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Title: Vice President
LENDER:
COMERICA BANK-CALIFORNIA
By: /s/ Xxxx Xxxxxxx
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Title: Vice President
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