EXHIBIT 10.74
AMENDMENT NO. 1 TO
SUBORDINATION AND INTERCREDITOR AGREEMENT
THIS AMENDMENT NO. 1 TO SUBORDINATION AND INTERCREDITOR AGREEMENT
(the "Amendment") is dated as of April 15, 2003, and is entered into among Audax
Mezzanine Fund, L.P., Audax Trust Co-Invest, L.P., Audax Co-Invest, L.P., The
Royal Bank of Scotland plc, New York Branch, Upper Columbia Capital Company,
LLC, State Street Bank and Trust Company, as Trustee for the DuPont Pension
Trust and Wilton Private Equity Fund, LLC (collectively, "Subordinated
Creditors"), American Coin Merchandising, Inc. ("Company"), ACMI Holdings, Inc.
("Holdings") and Madison Capital Funding LLC, as Agent (the "Agent") for the
Senior Lenders.
R E C I T A L S:
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A. The Subordinated Creditors, the Company, the Agent and certain
Senior Lenders are parties to a Credit Agreement dated as of February 11, 2002
(as amended, supplemented and otherwise modified from time to time, the
"Original Senior Credit Agreement"). In connection with the execution and
delivery of the Original Senior Credit Agreement, the Subordinated Creditors,
the Company, Holdings and the Agent executed and delivered a certain
Subordination and Intercreditor Agreement dated as of February 11, 2003 (the
"Subordination Agreement").
B. On the date hereof, the Company, the Agent and certain Senior
Lenders are entering into an Amended and Restated Credit Agreement of even date
herewith (the "Amended Senior Credit Agreement"), which will amend and restate
the Original Senior Credit Agreement in its entirety. In connection therewith,
the parties hereto have agreed to amend the Subordination Agreement in the
manner provided hereinbelow. Unless defined herein, capitalized terms used
herein shall have the meanings provided to such terms in the Amended Senior
Credit Agreement.
1. Amendments. Effective upon the effectiveness of the Amended
Senior Credit Agreement, the Subordination Agreement is hereby amended as
follows:
(a) Each reference to the "Credit Agreement" shall be deemed to be a
reference to the "Amended and Restated Credit Agreement" and each reference to
the date of such Credit Agreement shall be deemed to be a reference to the date
"April 15, 2003".
(b) The definition of the term "Senior Debt" is hereby amended by
deleting therefrom the amount "$6,500,000" and inserting in its place the amount
of "$8,200,000".
(c) A new Section 19 is hereby inserted into the Subordination
Agreement as follows:
"19. OTHER SUBORDINATION AGREEMENT. Audax and certain other Persons
(the "Additional Subordinated Creditors") are also party to a certain
Purchase Agreement with the Company dated as of April 15, 2003, and as may
be amended, modified or supplemented from time to time, the "Additional
Purchase Agreement") the Company has issued its 17% Senior Subordinated
Notes due 2009 in the aggregate principal amount of $6,500,000 (the
"Additional Notes"). The obligations of the Company under the Additional
Purchase Agreement and the Additional Notes are subordinated to the Senior
Debt pursuant to a certain Subordination and Intercreditor Agreement
executed by the Additional Subordinated Creditors, the Company, Holdings
and Agent dated as of April 15, 2003 (as it may hereafter be amended,
modified or supplemented from time to time, the "Additional Subordination
Agreement"). Each of the parties hereto agree that this Agreement shall
not in any way be deemed to effect the rights and obligations of the
parties to the Additional Subordination Agreement, the Additional Purchase
Agreement or the Additional Subordinated Note, which shall in all events
be governed by such agreements. The exercise by any Person of rights under
the Additional Subordination Agreement shall not be deemed to be an
exercise of rights by such Person under this Agreement, nor shall the
exercise of any rights under this Agreement be deemed to be an exercise of
rights under the Additional Subordination Agreement. By way of example
(and not by way of limitation), (a) the giving of a Senior Default Notice,
a Subordinated Debt Default Notice or any other notice hereunder shall not
constitute the giving of a similar notice under the Additional
Subordination Agreement unless the same is so specified in such Senior
Default Notice, Subordinated Debt Default Notice or other notice and (b)
the tolling of any time period under this Agreement shall not constitute
the tolling of any similar time period under the Additional Subordination
Agreement. Notwithstanding the foregoing, the parties hereto agree that
any Senior Default Notice, Subordinated Debt Default Notice or other
notice given hereunder may constitute a similar notice under the
Additional Subordination Agreement if identified as such in the body of
such notice. "
2. References. Any references to the Subordination Agreement in any
document, agreement or instrument executed in connection with the Original
Senior Credit Agreement, Amended Senior Credit Agreement or the Subordinated
Purchase Agreement shall be deemed to be a reference to the Subordination
Agreement, as amended by this Amendment.
3. 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 instrument.
4. Effect. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions of the
Subordination Agreement and shall not be deemed to be a consent to the
modification or waiver of any other term or condition of the Subordination
Agreement. Except as expressly modified and superseded by this Amendment, the
terms and provisions of the Subordination Agreement are ratified and confirmed
and shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective duly authorized officers on
the date first written above.
SUBORDINATED CREDITORS:
AUDAX MEZZANINE FUND, L.P.,
a Delaware limited partnership
By: Audax Mezzanine Business, L.P.
Its: General Partner
By: Audax Mezzanine Business, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx
Its: Authorized Member
AUDAX CO-INVEST, L.P.
By: 101 Huntington Holdings, LLC
Title: General Partner
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Its: Authorized Member
AUDAX TRUST CO-INVEST, L.P.
By: 101 Huntington Holdings, LLC
Title: General Partner
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Its: Authorized Member
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THE ROYAL BANK OF SCOTLAND PLC,
NEW YORK BRANCH
By: /s/ Una Corr
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Its: Vice President
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UPPER COLOMBIA CAPITAL
COMPANY, LLC
By: /s/ Xxxxxx Xxxxx
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Its: Manager
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STATE STREET BANK AND TRUST
COMPANY, as Trustee for the DuPont
Pension Trust
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Its: Vice President
WILTON PRIVATE EQUITY FUND, LLC
By: Wilton Asset Management, L.L.C.
Its: Manager
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Its: President
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COMPANY:
AMERICAN COIN MERCHANDISING, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: President & CEO
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HOLDINGS:
ACMI HOLDINGS, INC.,
formerly known as CRANE MERGERCO
HOLDINGS, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: President & CEO
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AGENT:
MADISON CAPITAL FUNDING LLC,
a Delaware limited liability company, as
Agent
By: /s/ Xxxxx Xxxx
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Its: Managing Director
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