LIMITED WAIVER
This LIMITED WAIVER (this "Agreement") is entered into as of June 14, 1999,
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 Imperial Bank, 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 (the "Credit Agreement");
B. Borrower proposes to undertake an underwritten public offering (the
"Offering") with Xxxxxxx, Xxxxx & Co., Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation and Xxxxxxxxx and Xxxxx LLC, as representatives of the underwriters,
of shares of Common Stock of the Borrower pursuant to a Registration Statement
on Form S-3 to be filed with the Securities and Exchange Commission;
C. Section 2.2(b)(i) of the Credit Agreement requires that the Borrower
make certain mandatory prepayments of Loans upon any Equity Issuance by the
Borrower during the term of the Credit Agreement, and Section 2.2(b)(v) operates
to reduce the Revolving Commitments and/or the Term Commitments, subject to
certain conditions set forth in the Credit Agreement, in the amount of such
mandatory prepayments;
D. Borrower has requested that the Lenders waive the provisions of
Section 2.2(b)(i) and (v) of the Credit Agreement with respect to the Offering,
and the Lenders have agreed, all on the terms set forth herein.
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.
2. LIMITED WAIVER. Subject to the terms and conditions contained
herein, and in reliance on the representations and warranties of the Borrower
set forth herein, for so long as the Borrower shall maintain in one or more
deposit accounts with the Agent an amount not less than the greater of (i)
Fifteen Million Dollars ($15,000,000) or (ii) the aggregate amount of the
outstanding Loans and the Letter of Credit Usage under the Credit Agreement,
Lenders hereby waive the provisions of Sections 2.2(b)(i) and (v) of the Credit
Agreement with respect to the Offering. It shall be a condition precedent to
the waiver set forth herein that the Agent, for the benefit of the Lenders,
shall have a first priority perfected security interest in such account(s).
Without limiting the generality of the provisions of Section 9.1 of the Credit
Agreement, the waiver set forth herein shall be limited precisely as written,
and nothing in this Agreement shall be deemed to (i) constitute a waiver of any
such provision of the Credit Agreement in any other instance, or (ii) constitute
a waiver of any other Event of Default or other failure by Borrower to perform
in accordance with the Loan Documents or this Agreement, or (iii) prejudice any
right or remedy that the Agent or any Lender may now have or may have in the
future under or in connection with the Credit Agreement or the Loan Documents.
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3. CONDITIONS TO EFFECTIVENESS.
This Agreement shall become effective as of June 14, 1999 (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 Agreement 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 Agreement; and
(iii) an affirmation of the Guaranty, duly executed on behalf
of the Guarantor;
(b) Borrower shall have deposited with the Agent in one or more
deposit accounts the amounts specified in Section 2 hereof; and
(c) completion of such other matters, and delivery of such other
agreements, documents and certificates as the Agent may reasonably request.
4. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders to
enter into this Agreement, the Borrower represents and warrants to the Lenders
that the following statements are true, correct and complete as of the effective
date of this Agreement:
(a) CORPORATE POWER AND AUTHORITY. The Borrower has all requisite
corporate power and authority to enter into this Agreement and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Agreement (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 Agreement 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 Agreement 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 Agreement and the performance by the Borrower of the Amended
Agreement do not and
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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).
(e) BINDING OBLIGATION. This Agreement 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. The representations and warranties contained in Section 5.1 of the
Credit Agreement are correct on and as of the effective date of this Agreement
as though made on and 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
Agreement 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 Agreement, 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 Agreement
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 Agreement
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.
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(c) HEADINGS. Section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
(d) APPLICABLE LAW. THIS AGREEMENT 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 Agreement 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 Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
COINSTAR, INC.
By:
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Title:
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AGENT:
IMPERIAL BANK
By:
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Title:
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LENDERS:
IMPERIAL BANK
By:
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Title:
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
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Title:
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By:
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Title:
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AFFIRMATION OF GUARANTY
The undersigned Guarantor hereby acknowledges and agrees to the terms of
the foregoing Limited Waiver (the "Agreement"), and further acknowledges and
agrees that nothing contained in the Agreement in any way affects the validity
and enforceability of that certain Subsidiary Guaranty (the "Guaranty") dated as
of February 19, 1999, executed by the undersigned Guarantor in favor of Lenders,
the validity and effectiveness of which Guaranty is hereby reaffirmed as of the
Effective Date of the Agreement.
MY XXXXXXXXXXXX.XXX, INC.
By:
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Name:
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Title:
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