EXHIBIT 10.71
CONSENT AND AMENDMENT
This CONSENT AND AMENDMENT ("Amendment") to the Purchase Agreement
(the "Purchase Agreement") dated as of February 11, 2002 and amended as of
November 12, 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"), and to the
Warrants issued to the Purchasers pursuant to the Purchase Agreement, is dated
as of April 15, 2003, and is entered into by and among Holdings, the Company and
the Purchasers.
W I T N E S S E T H :
RECITALS
WHEREAS, upon the terms and subject to the conditions set forth in
the New Purchase Agreement (as defined below), the Company has agreed to sell to
the Purchasers named therein and each Purchaser severally has agreed to purchase
from the Company, in the aggregate, $6.5 million principal amount of the
Company's Senior Subordinated Notes due 2009 hereto (the "New Notes");
WHEREAS, upon the terms and subject to the conditions set forth in
the New Purchase Agreement Holdings has agreed to issue to the Purchasers named
therein warrants (the "New Warrants") initially exercisable for an aggregate of
up to 30,957 shares of Holdings Common Stock, par value $.01 per share;
WHEREAS, the Company intends to acquire (a) substantially all of the
assets of Xxxx Vending Co., Inc., a New York corporation ("Xxxx Vending"), and
Xxxx Novelty Co., Inc., a New York corporation ("Xxxx Novelty") (the "Xxxx
Acquisition"), in accordance with the Asset Purchase Agreement (the "Xxxx Asset
Purchase Agreement") dated as of March 14, 2003 by and among FVFN Acquisition
Corp., a Delaware corporation, the Company, Xxxx Vending, Xxxx Novelty, The
Xxxxx Xxxx Revocable Trust and Xxxxx Xxxx and (b) substantially all of the
assets of Gameplan, Inc., a New Jersey corporation ("Gameplan"), and Pinball
Wizard, Inc., a New Jersey corporation ("Pinball") (the "Gameplan Acquisition"),
in accordance with the terms of an asset purchase and sale agreement (the
"Gameplan Asset Purchase and Sale Agreement") by and among the Company,
Gameplan, Pinball and Xxxxxxx XxXxxxx pursuant to which the Gameplan Acquisition
is consummated;
WHEREAS, in connection with the Xxxx Acquisition and the Gameplan
Acquisition, (i) the Company will enter into an $82.0 million amended and
restated senior secured credit facility (the "Credit Facility") and (ii)
Wellspring Capital Partners II, L.P., CIT Lending Services Corporation, Indosuez
Capital Partners 2003, L.L.C. and the Audax
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Investor Group (as defined in the New Purchase Agreement) will make, pursuant to
subscription agreements, dated as of the date hereof (the "Subscription
Agreements"), equity investments in Holdings of $10,750,001.00, $499,995.50,
$1,500,003.50 and $249,993.50, respectively (the "Equity Financing"); 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:
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 Xxxx Acquisition and the issuance and sale of the New Notes by
the Company to the Purchasers named in the New Purchase Agreement.
2. AMENDMENTS TO THE PURCHASE AGREEMENT. Subject to the satisfaction
of the conditions set forth in Section 4 below, the Purchase Agreement is
amended as follows:
(a) The definition of "Capital Expenditure" contained in Section
1.01 of the Purchase Agreement is amended and restated in its entirety as
follows:
"Capital Expenditures" means all expenditures which, in accordance
with GAAP, would be required to be capitalized and shown on a consolidated
balance sheet of the Company, but excluding (a) expenditures made in
connection with the replacement, substitution or restoration of assets to
the extent financed (i) from insurance proceeds (or other similar
recoveries) paid on account of the loss of or damage to the assets being
replaced or restored or (ii) with awards of compensation arising from the
taking by eminent domain or condemnation of the assets being replaced, (b)
expenditures made in connection with Acquisitions permitted under Sections
8.15(a)(xvi) and (xvii) and (c) for the 2003 Fiscal Year only, up to
$1,200,000 of payments made to acquire equipment under operating leases
within 30 days after the Closing Time."
(b) The definition of "Chinese Subsidiary" contained in Section 1.01
of the Purchase Agreement is hereby deleted in its entirety.
(c) The definition of the term "Computation Period" contained in
Section 1.01 of the Purchase Agreement is amended and restated in its entirety,
as follows:
"Computation Period" means each period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter; provided, that for
the Computation Periods ending on each of June 30, 2003, September 30,
2003 and December 31, 2003, the denominator for each of the Fixed Charge
Coverage Ratio and the Interest Coverage
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shall be calculated for the period from April 1, 2003 through and
including the last day of such Computation Period and annualized.
(d) The definition of "Consultant Expenses" contained in Section
1.01 of the Purchase Agreement is amended and restated in its entirety as
follows:
"Consultant Expenses" means actual out-of-pocket costs and expenses
incurred by the Company to its consultant in respect of the possible
formation of a Subsidiary of the Company under the laws of the Peoples
Republic of China to act as a buying office, warehouse and distribution
center for skill crane merchandise and directly related businesses, and
related issues, up to an aggregate maximum amount of $150,000.
(e) The definition of "Credit Agreement" contained in Section 1.01
of the Purchase Agreement is amended and restated in its entirety as follows:
"Credit Agreement" means the Amended and Restated Credit Agreement
dated as of the date hereof relating to the Credit Facility as in effect
on April 15, 2003, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, in
each case as such agreements may be amended (including any amendment and
restatement thereof), supplemented or otherwise modified from time to
time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder (provided that such increase in borrowings
is permitted under Section 8.04) or adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement
agreement and whether by the same or any other agent, lender or group of
lenders.
(f) The definition of the term "EBITDA" contained in Section 1.01 of
the Purchase Agreement is amended and restated in its entirety as follows:
"EBITDA" means, for any period, Consolidated Net Income for such
period plus, to the extent deducted for such period in determining such
Consolidated Net Income, Interest Expense, income tax expense,
depreciation, amortization, other non-cash charges, management, consulting
and similar fees to the extent permitted pursuant to Section
8.02(b)(iii)(1), transaction fees and expenses relating to the Related
Transactions, to the extent expensed on or after February 11, 2002, and,
with respect only to (i) periods that include portions of the 2002 Fiscal
Year, Consultant Expenses incurred during portions of the 2002 Fiscal Year
included in such period and (ii) periods that include portions of the 2003
Fiscal Year, (a) up to $200,000 of expenses relating to the closure of the
Company's Kent, Washington facility, (b) aggregate rental, insurance and
utility expenses for new distribution centers opened
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by the Company during the 2003 Fiscal Year, for the period commencing on
January 1, 2003 and ending on the termination date of the Kent, Washington
lease, but in any event not after September 30, 2003, and (c) payments
made under operating leases in respect of equipment purchased within 30
days of the Closing Time by the Company with proceeds of the Credit
Facility, which amount of EBITDA shall be adjusted, without duplication
with the calculation of Pro Forma EBITDA, by identifiable and verifiable
actual or pro forma one-time nonrecurring items, such as excess owner
compensation, severance and one-time transaction-related expenses related
to any Acquisition or joint venture Investments permitted to be made under
Section 8.15 hereof, in each case to the extent approved by the Required
Holders, which approval shall not be unreasonably withheld; provided that,
notwithstanding anything to the contrary contained herein, for each of the
calendar months listed below, EBITDA shall be deemed to be the amount set
forth below opposite such month:
EBITDA EBITDA
(if the Gameplan Acquisition (if the Gameplan Acquisition
Calendar Month is not consummated) is consummated)
January 2002 $2,030,520 $2,187,430
February 2002 $2,342,585 $2,499,495
March 2002 $2,642,129 $2,799,039
April 2002 $2,413,058 $2,569,968
May 2002 $2,230,207 $2,387,117
June 2002 $2,423,841 $2,580,751
July 2002 $3,289,458 $3,446,368
August 2002 $3,067,278 $3,224,188
September 2002 $2,397,039 $2,553,949
October 2002 $2,503,415 $2,660,325
November 2002 $2,566,584 $2,723,764
December 2002 $3,458,867 $3,615,777
(g) The definition of the term "Environmental Claims" contained in
Section 1.01 of the Purchase Agreement is amended and restated in its entirety
as follows:
"Environmental Claims" means all claims, however asserted, by any
governmental, regulatory or judicial authority or other Person alleging
liability or
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responsibility for violation of any Environmental Law, or for release or
injury to the environment or any Person or property.
(h) The definition of the term "GAAP" in Section 1.01 of the
Purchase Agreement is amended and restated in its entirety as follows:
"GAAP" means generally accepted accounting principles in effect in
the United States of America, as set forth from time to time in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies
with similar functions of comparable stature and authority within the U.S.
accounting profession), which are applicable to the circumstances as of
the date of determination.
(i) The definition of the term "Kiddie World Acquisition" in Section
1.01 of the Purchase Agreement is amended and restated in its entirety as
follows:
"Kiddie World Acquisition" means the acquisition by the Company of
certain of the assets of Kiddie World pursuant to a certain Asset Purchase
and Sale Agreement dated September 2, 2002 and related agreements,
instruments and documents.
(j) The definition of the term "Pro Forma EBITDA" in Section 1.01 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.
(k) The definition of "Unrestricted Subsidiary" in Section 1.01 of
the Purchase Agreement is amended and restated in its entirety as follows:
"Unrestricted Subsidiary" means each Subsidiary of the Company as to
which the Company has notified the Noteholders in writing, on or prior to
the date of formation or Acquisition by the Company or another Subsidiary
of such Subsidiary, that the Company has elected to designate such
Subsidiary as an Unrestricted Subsidiary for purposes of this Agreement,
and as to which the Company has not
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subsequently notified the Noteholders in writing to change such
designation to that of a Restricted Subsidiary. Without the consent of the
Required Holders, no Restricted Subsidiary may at any time be redesignated
as an Unrestricted Subsidiary. As of the Closing Time, the Company shall
have no Unrestricted Subsidiaries other than ACMI Canada, Inc.
(l) Section 1.01 of the Purchase Agreement is amended to include
definitions of the terms "Xxxx Acquisition", "Xxxx Asset Purchase Agreement",
"Xxxx Novelty", "Xxxx Vending", "Gameplan", "Gameplan Acquisition", "Gameplan
Asset Purchase Agreement", "New Notes", "New Purchase Agreement", "Pinball",
"Related Transactions" and "Related Transaction Documents" in alphabetical
order, as follows:
"Xxxx Acquisition" means the acquisition by the Company of assets of
Xxxx Novelty and Xxxx Vending pursuant to the Xxxx Asset Purchase
Agreement.
"Xxxx Asset Purchase Agreement" means the asset purchase agreement
dated March 14, 2003 executed by the Company, FVFN Acquisition Corp., a
Delaware corporation, Xxxx Vending, Xxxx Novelty, the Xxxxx Xxxx Revocable
Trust and Xxxxx Xxxx, as the same has been and may hereafter be amended,
supplemented or modified from time to time.
"Xxxx Novelty" means Xxxx Novelty Co., Inc., a New York corporation.
"Xxxx Vending" means Xxxx Vending Co., Inc., a New York corporation.
"Gameplan" means Gameplan, Inc., a New Jersey corporation.
"Gameplan Acquisition" means the acquisition by the Company of
assets of Gameplan and Pinball pursuant to the Gameplan Asset Purchase
Agreement.
"Gameplan Asset Purchase Agreement" means that asset purchase
agreement to be executed by the Company, Gameplan, Pinball and Xxxxxxx
XxXxxxx pursuant to which the Gameplan Acquisition is consummated, as may
thereafter be amended, supplemented or modified from time to time.
"New Notes" means the Company's Senior Subordinated Notes due in
2009 issued pursuant to the New Purchase Agreement.
"New Purchase Agreement" means the purchase agreement dated as of
April 15, 2003 among ACMI Holdings, Inc., American Coin Merchandising,
Inc. and the Purchasers named therein.
"Pinball" means Pinball Wizard, Inc., a New Jersey corporation.
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"Related Transaction Documents" shall have the meaning assigned to
the term "Transaction Documents" in the New Purchase Agreement.
"Related Transactions" shall have the meaning assigned to the term
"Transactions" in the New Purchase Agreement.
(m) Clause (ii) of Section 6.01(n) of the Purchase Agreement is
hereby amended and restated as follows:
"(ii) Notwithstanding any provision in this Agreement to the
contrary, (x) none of Holdings, the Company or any Subsidiary shall in any
event be required to provide to any Person any information protected by
law as a privileged communication resulting from a protected relationship
(including, by way of example, the attorney client relationship), so long
as such information remains privileged and the disclosure of such
privileged information would, in the good faith judgment of Holdings or
the Company (based on the advice of counsel), constitute a waiver of such
privileged status and (y) other than with respect to any original
Purchaser (so long as such Purchaser holds any Warrants or Warrant
Shares), the Company shall not have any obligations to provide information
under this Section 6 to any Warrantholder or Warrantshareholder that holds
Warrants and/or Warrant Shares (and Warrants and Warrant Shares as defined
in the New Purchase Agreement) equivalent to less than 500 shares of
Holdings Common Stock (subject to appropriate adjustment for combinations,
subdivisions, stock dividends and like events with respect to the Holdings
Common Stock)."
(n) Section 7.10(a) of the Purchase Agreement is hereby amended by
(i) inserting "(including AFF Co-Invest, L.P.)" after the phrase Audax Investor
Group in the first line of the first sentence thereof and (ii) inserting "and
the New Notes" after the phrase "the Notes" in the third line of the first
sentence thereof.
(o) Clauses (iii)(1) and (vi) of Section 8.02(b) of the Purchase
Agreement are each hereby amended and restated in their entirety and new clause
(x) is added as follows:
"(1) pay fees to the Sponsors pursuant to the Services and Fee
Agreement in an aggregate amount not exceeding $500,000 in any Fiscal Year
(exclusive of transaction costs paid pursuant to the Services and Fee
Agreement at the Closing Time in respect of the Transactions and, upon the
closing of the Xxxx Acquisition and the Gameplan Acquisition, in respect
of the Related Transactions), plus reasonable out-of-pocket expenses as
provided in the Services and Fee Agreement and"
"(vi) each of the Closing Time Issuers or any Restricted Subsidiary
may consummate the Transactions and the Related Transactions and may pay
fees and expenses incurred in connection with the Transactions and the
Related Transactions;"
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"(x) on the Closing Time, the Company may make distributions to
Holdings to permit Holdings to redeem Common Stock of Holdings held by a
lender under the Credit Agreement."
(p) Clauses (i), (iv), (viii), (ix), (xi), (xii) and (xiii) of
Section 8.04 of the Purchase Agreement are each hereby amended and restated in
their 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;"
"(iv) Indebtedness of FVFN Acquisition Corp. to Fundamental Dynamics
Industries, Inc. in an aggregate outstanding principal amount not at any
time in excess of $75,000;"
"(viii) the Indebtedness under this Agreement, the Notes, the
Guarantees, the New Purchase Agreement, the New Notes and the guarantees
thereof;"
"(ix) the Senarc Debt in an aggregate outstanding principal amount
not at any time from and after April 15, 2003 exceeding $223,490, together
with accrued and unpaid interest thereon;"
"(xi) Indebtedness incurred in connection with Acquisitions
permitted pursuant to Section 8.15 (xvi); provided that the requirements
of clause (6) of such Section are satisfied;"
"(xii) the Kiddie World Debt in an aggregate outstanding principal
amount not at any time from and after April 15, 2003 exceeding $953,051,
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 at such time (but in no event less than zero)
(such clauses (i) through (xiii), collectively, referred to as "Permitted
Indebtedness"), provided that the Company and its Restricted Subsidiaries
shall not incur any Permitted Indebtedness after April 15, 2003 that is
Subordinated Indebtedness that has a maturity or mandatory sinking fund
payment prior to the Maturity of the Notes."
(q) Clauses (iii) and (viii) of Section 8.06 of the Purchase
Agreement are hereby amended and restated in their entirety as follows:
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"(iii) the execution and delivery of the Transaction Documents and
the Related Transaction Documents and the consummation of the transactions
contemplated thereby and/or permitted pursuant to Section 8.02, including
but not limited to the incurrence and payment on the Closing Time and on
April 15, 2003 of all fees and expenses (including fees and expenses
payable to or on behalf of the Sponsors or Holdings pursuant to the
Services and Fee Agreement) in connection therewith;"
"(viii) Indebtedness permitted under Section 8.04(iii), (vii) and
(xi) and Investments permitted under Section 8.15(a)(i), (iii), (iv),
(xii), (xiii), (xvi), (xvii) and (xviii)."
(r) Clauses (ii), (xiii), (xvi), (xvii) and (xviii) of Section 8.15
of the Purchase Agreement are hereby amended and restated in their entirety as
follows:
"(ii) [Reserved];"
"(xiii) Investments constituting any portion of the Transactions or
the Related Transactions;"
"(xvi) any Acquisition by the Company or any domestic Wholly-Owned
Restricted Subsidiary that is a Guarantor (other than the Gameplan
Acquisition) where (1) the business or division acquired are for use, or
the Person acquired is engaged, in the businesses engaged in by the
Company and the Restricted Subsidiaries at the Closing Time, (2) in the
case of the Acquisition of any Person, the Board of Directors of such
Person has approved such Acquisition and all of the equity interests of
such Person are being acquired, (3) immediately before and after giving
effect to such Acquisition and the Indebtedness incurred in connection
therewith, no Default or Event of Default shall exist, (4) the Company is
in pro forma compliance with Section 8.20 calculated on a pro forma basis
for the most recent four fiscal quarter period then ended, but including
the effect of the proposed Acquisition and the Indebtedness incurred in
connection therewith, as reflected in an Officers' Certificate delivered
to the Noteholders at least three Business Days prior to the consummation
of such Acquisition, (5) the aggregate consideration to be paid by the
Company and the Subsidiaries (including any Indebtedness assumed or issued
in connection therewith, the amount thereof to be calculated in accordance
with GAAP) in connection with such Acquisition, together with such
consideration paid in connection with all other Acquisitions completed
since the Closing Time (other than the Kiddie World Acquisition, the Xxxx
Acquisition and, if consummated, the Gameplan Acquisition), is less than
or equal to $3,000,000, (6) no more than $2,000,000 in the aggregate of
the purchase prices for all Acquisitions completed since the Closing Time
(other than the Kiddie World Acquisition, the Xxxx Acquisition and, if
consummated, the Gameplan Acquisition), shall be financed with
Indebtedness, and such Indebtedness (other than Revolving Loans (as
defined in the Credit Agreement) advanced under the Credit
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Agreement) shall be unsecured, (7) the business or division acquired, or
the Person acquired, has positive earnings before interest, taxes,
depreciation and amortization (determined pursuant to GAAP) for the most
recent 12 month period then completed, (8) reasonably prior to such
Acquisition, the Noteholders shall have received complete executed or
conformed copies of each material document, instrument and agreement to be
executed in connection with such Acquisition, and (9) the Noteholders
shall have approved the Company's computation of Pro Forma EBITDA for the
Person to be acquired, which approval shall not be unreasonably withheld,
or if the Company elects not to seek the Noteholders' approval, such Pro
Forma EBITDA shall be deemed to be equal to zero for all purposes
hereunder;"
"(xvii) the Gameplan Acquisition, so long as (1) the Board of
Directors of each of Gameplan and Pinball has approved the Gameplan
Acquisition, (2) immediately before and after giving effect to the
Gameplan Acquisition and the Indebtedness incurred in connection
therewith, no Default or Event of Default shall exist, (3) the aggregate
consideration to be paid by the Company and the Subsidiaries (including
any Indebtedness assumed or issued in connection therewith, the amount
thereof to be calculated in accordance with GAAP) in connection with the
Gameplan Acquisition is less than or equal to $8,500,000, (4) the only
Indebtedness incurred to consummate the Gameplan Acquisition shall be
solely a combination of the proceeds of the New Notes and the proceeds of
the Term C Loan and Term D Loan (each as defined in the Credit Agreement),
(5) reasonably prior to the Gameplan Acquisition, the Noteholders shall
have received complete executed or conformed copies of each material
document, instrument and agreement to be executed in connection with the
Gameplan Acquisition, (6) the Noteholders shall have received and
reviewed, with satisfactory results, all business and legal due diligence
reasonably required by them in connection with the Gameplan Acquisition,
(7) the Noteholders shall have received satisfactory evidence that Pro
Forma EBITDA for Gameplan and Pinball is at least $1,800,000 and (8) the
Gameplan Acquisition shall have been consummated on or prior to May 31,
2003; and"
"(xviii) in addition to Investments otherwise expressly permitted by
clauses (i) through (xvii) above, Investments by the Company or any of its
Restricted Subsidiaries in an aggregate amount (valued at cost) not to
exceed $250,000 during the term of this Agreement."
(s) Section 8.16 of the Purchase Agreement is hereby amended and
restated in its entirety as follows:
"8.16. Amendments or Waivers of Certain Documents. The Company shall
not, and shall not cause or permit any of its Subsidiaries to, amend or
otherwise modify, or waive any rights, or suffer to occur any amendment or
other modification or waiver, under (i) any Transaction Document or any
Related Transaction Document, (ii) any provisions of any agreement,
instrument or document evidencing or securing
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any of the Subordinated Indebtedness, including without limitation, the
Trust Subordinated Debt Documents, the Trust Preferred Guarantee and the
Kiddie World Debt Documents, (iii) the Senarc Debt Documents or (iv) any
provisions of the Trust Preferred Documents, in each case, other than
amendments, modifications and waivers not materially adverse to the
interests of the Noteholder as determined by the Required Holders in their
reasonable judgment."
(t) Section 8.18 of the Purchase Agreement is hereby amended by
deleting the amount "$4,000,000" and inserting in its place "$6,000,000".
(u) Section 8.20 of the Purchase Agreement is hereby amended and
restated in its entirety as follows:
"8.20 Financial Covenants.
8.20.1 Fixed Charge Coverage Ratio. The Company shall not permit the
Fixed Charge Coverage Ratio for any Computation Period to be less than the
applicable ratio set forth below for such Computation Period:
Fixed Charge
Computation Period Ending Coverage Ratio
------------------------- --------------
June 30, 2003 1.00 : 1.0
September 30, 2003 1.00 : 1.0
December 31, 2003 1.00 : 1.0
March 31, 2004 1.00 : 1.0
June 30, 2004 1.00 : 1.0
September 30, 2004 1.00 : 1.0
December 31, 2004 1.00 : 1.0
March 31, 2005 1.00 : 1.0
June 30, 2005 1.00 : 1.0
September 30, 2005 1.00 : 1.0
December 31, 2005 1.00 : 1.0
March 31, 2006 and each June 30, September 30, 1.05 : 1.0
December 31 and March 31 thereafter
8.20.2 Interest Coverage Ratio. The Company shall not permit the
Interest Coverage Ratio for any Computation Period to be less than the
applicable ratio set forth below for such Computation Period:
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Interest
Computation Period Ending Coverage Ratio
------------------------- --------------
June 30, 2003 2.25 : 1.0
September 30, 2003 2.25 : 1.0
December 31, 2003 2.25 : 1.0
March 31, 2004 2.25 : 1.0
June 30, 2004 2.25 : 1.0
September 30, 2004 2.40 : 1.0
December 31, 2004 2.40 : 1.0
March 31, 2005 2.55 : 1.0
June 30, 2005 2.55 : 1.0
September 30, 2005 2.75 : 1.0
December 31, 2005 2.75 : 1.0
March 31, 2006 3.00 : 1.0
June 30, 2006 3.00 : 1.0
September 30, 2006 3.00 : 1.0
December 31, 2006 3.20 : 1.0
March 31, 2007 3.20 : 1.0.
June 30, 2007 and each September 30, 3.40 : 1.0
December 31, March 31
and June 30 thereafter
8.20.3 Total Debt to EBITDA Ratio. The Company shall not permit the
Total Debt to EBITDA Ratio as of the last day of any Computation Period to
exceed the applicable ratio set forth below for such Computation Period:
Total Debt to
Computation Period Ending EBITDA Ratio
------------------------- ------------
June 30, 2003 4.45 : 1.0
September 30, 2003 4.45 : 1.0
December 31, 2003 4.15 : 1.0
March 31, 2004 4.15 : 1.0
June 30, 2004 4.15 : 1.0
September 30, 2004 4.10 : 1.0
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Total Debt to
Computation Period Ending EBITDA Ratio
------------------------- ------------
December 31, 2004 4.10 : 1.0
March 31, 2005 4.10 : 1.0
June 30, 2005 3.85 : 1.0
September 30, 2005 3.85 : 1.0
December 31, 2005 3.85 : 1.0
March 31, 2006 3.50 : 1.0
June 30, 2006 3.50 : 1.0
September 30, 2006 3.25 : 1.0
December 31, 2006 3.25 : 1.0
March 31, 2007 and each June 30, September 30, 3.00 : 1.0
December 31 and March 31 thereafter
8.20.4 Capital Expenditures. The Company shall not permit the
aggregate amount of all Capital Expenditures made by the Company and its
Restricted Subsidiaries in any Fiscal Year to exceed (a) if the Gameplan
Acquisition shall not have been consummated, the applicable amount set forth
below under the column entitled "Capital Expenditures (if the Gameplan
Acquisition is not consummated)" for such Fiscal Year and (b) if the Gameplan
Acquisition shall have been consummated, the applicable amount set forth below
under the column entitled "Capital Expenditures (if the Gameplan Acquisition is
consummated)" for such Fiscal Year:
Capital Expenditures Capital Expenditures
(if the Gameplan Acquisition (if the Gameplan Acquisition
Fiscal Year is not consummated) is consummated)
----------- ------------------- ---------------
2003 12,800,000 $13,500,000
2004 12,800,000 $13,500,000
2005 13,800,000 $14,500,000
2006 13,800,000 $14,500,000
2007 and each Fiscal Year thereafter 13,800,000 $14,500,000
If the Company does not utilize the entire amount of Capital Expenditures
permitted in any Fiscal Year commencing with Fiscal Year 2003, the Company may
carry forward, to the immediately succeeding Fiscal Year only, 50% of such
unutilized amount (with Capital
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Expenditures made by the Company in such succeeding Fiscal Year applied last to
such unutilized amount)."
(v) The last sentence of Section 14.01 is hereby amended and
restated in its entirety as follows:
"The Company will pay, and will save each Purchaser and each other
Holder harmless from, all claims in respect of any fees, costs or expenses
if any, of brokers and finders engaged by or on behalf of any Closing Time
Issuer or any of its Subsidiaries in relation to the Transactions and the
Related Transactions."
3. AMENDMENTS TO THE WARRANTS. (a) Clause (ii) of the third
paragraph of Section 4(b) of each of the Warrants is amended and restated as
follows: (ii) the issuance of the Authorized Warrants or the New Warrants and
the issuance of any shares upon the exercise of either the Authorized Warrants
or the New Warrants;
(b) Clause (viii) of the third paragraph of Section 4(b) of each of
the Warrants is amended and restated as follows: (viii) the issuance of the
AHYDO Warrants (as defined in the Purchase Agreement) pursuant to the terms of
the Purchase Agreement and the issuance of the New AHYDO Warrants (as defined in
the New Purchase Agreement) pursuant to the terms of the New Purchase Agreement
and, in each case, the issuance of any shares upon the exercise of either the
AHYDO Warrants or the New AHYDO Warrants.
(c) Section 9 of each of the Warrants is amended to included the
definition of "New AHYDO Warrants", "New Purchase Agreement" and "New Warrants"
in alphabetical order as follows:
"New AHYDO Warrants" means warrants in substantially the same form
as that of the New Warrants provided that the New AHYDO Warrants shall not
be entitled to the benefit of the anti-dilution provisions set forth in
Sections 4(b) and 4(c) of the New Warrants.
"New Purchase Agreement" means the certain purchase agreement dated
as of April 15, 2003 among ACMI Holdings, Inc., American Coin
Merchandising, Inc. and the Purchasers named therein.
"New Warrants" means the warrants issued in connection with the New
Purchase Agreement for 30,957 shares of Common Stock of ACMI Holdings,
Inc.
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 have been satisfied or
waived:
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(a) the Purchasers shall have received a fully executed copy of this
Amendment signed by the Company, Holdings and the Required Holders, and
such other documents and instruments as the Purchasers may require;
(b) the Purchasers shall have received a fully executed copy of the
Amended and Restated Credit Agreement (the "Credit Agreement") dated as of
April 15, 2003 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;
(c) the Purchasers shall have received executed copies of all
material documents, agreements and instruments pertaining to the Xxxx
Acquisition;
(d) 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
(e) no Default or Event of Default shall have occurred and be
continuing.
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) is 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.
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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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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. Faguardo
-----------------------------
Title: President & CEO
ACMI HOLDINGS, INC.
By: /s/ Xxxxxxx X. Faguardo
-----------------------------
Title: President & CEO
S-1
PURCHASERS:
AUDAX MEZZANINE FUND, L.P.
By: Audax Mezzanine Business, L.P.
Its: General Partner
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
AUDAX CO-INVEST, L.P.
By: 101 Huntington Holdings, LLC
Title: General Partner
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
AUDAX TRUST CO-INVEST, L.P.
By: 101 Hunting Holdings, LLC
Title: General Partner
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
S-2
THE ROYAL BANK OF SCOTLAND PLC,
NEW YORK BRANCH
By: /s/ Una Corr
---------------------------------
Name: Una Corr
Title: Vice President
S-3
UPPER COLOMBIA CAPITAL COMPANY,
LLC
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Manager
S-4
STATE STREET BANK AND TRUST
COMPANY,
as Trustee for the DuPont Pension Trust
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
S-5
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
S-6
