exv10w5



 





Exhibit 10.5




WAIVER




     This
WAIVER (this “Waiver”) is entered into as of August 9, 2007 by and between CASH SYSTEMS,
INC., a Delaware corporation (the “Company”), and HIGHLINE CAPITAL INTERNATIONAL, LTD. (the
"Investor”), with reference to the following facts:



     A. The Company entered into that certain Securities Purchase Agreement, dated as of October 6,
2006 (the “Agreement”) by and among the Company and the Buyers (as defined in the Agreement),
whereby the Company issued, among other things, certain Senior Secured Convertible Notes (the
"Notes”) convertible into the Company’s common stock, par value $0.001 per share (the “Common
Stock”), in accordance with the terms of the Notes.



     B. As of June 30, 2007, the Company failed to meet certain financial thresholds set forth in
Section 14(f) of the Notes (the “Default Test Failure”).



     C. The Company has requested that the Investor, as a holder of Notes, waive such Default Test
Failure and, subject to the terms hereof, Investor has agreed during the Waiver Period (as defined
below) to waive such Default Test Failure on the terms and subject to the conditions set forth
herein.



     D. Concurrently herewith, the Company has also requested waivers from the other holders of
Notes pursuant to waivers in form and substance identical to this Waiver (the “Other Waivers”, and
together with this Waiver, the “Waivers”).



     NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:



     1. Defined Terms. Capitalized terms used and not otherwise defined in this Waiver
shall have the meanings given to them in the Agreement.



     2. Waiver of Default Test Failure. During the period (the “Waiver Period”) commencing
on June 30, 2007 and ending on August 20, 2007 (the “Waiver Termination Date”), the Investor hereby
waives any Event of Default (as defined in the Notes) arising under the Notes or any other
Transaction Document as a result of the Default Test Failure (the “Waiver Defaults”). The Company
hereby acknowledges and agrees that nothing contained herein shall constitute any agreement by the
Investor to waive any failure by the Company to meet the financial thresholds set forth in Section
14(f) of the Notes for any period subsequent to June 30, 2007 or any agreement by the Investor to
waive the Waiver Defaults, if any, after the Waiver Period or any agreement by the
Investor to waive any other Event of Default. Notwithstanding the
foregoing, the Company acknowledges and agrees that if the transactions contemplated by the Amendments
(as defined below) have not been consummated by the Waiver Termination Date, the Waiver Defaults
shall constitute Events of Default under the Notes as of the original
default date as if the Waiver contained herein was not granted.



 









 





     3. Amendment to the Transaction Documents. The Company and the Investor each agree to
use reasonable best efforts to enter into an amendment to the Transaction Documents to reflect the
terms set forth on Exhibit A attached hereto (the “Amendments”) as soon as reasonably
practicable and in no event later than the Waiver Termination Date.



     4. Reaffirmation of Obligations. The Company hereby confirms and agrees that, except
as set forth in Section 2 above, (i) the Agreement, the Registration Rights Agreement, the
Securities, the Security Documents and each other Transaction Document is, and shall continue to
be, in full force and effect and is hereby ratified and confirmed in all respects, (ii) to the
extent that the Agreement or any other Transaction Document purports to assign or pledge to the
Buyers and the holders of the Securities, or to grant to the Collateral Agent a security interest
in or lien on, any collateral as security for the obligations of the Company from time to time
existing in respect of the Notes and any other Transaction Document, such pledge, assignment and/or
grant of the security interest or lien is hereby ratified and confirmed in all respects, and shall
apply with respect to the obligations under the Notes, and (iii) the execution, delivery and
effectiveness of this Waiver shall not operate as an amendment of any right, power or remedy of the
Buyers under any Transaction Document, nor constitute an amendment of any provision of any
Transaction Document.



     5. Fees and Expenses. The Company shall pay or cause to be paid all legal fees and
expenses of counsel for Portside Growth and Opportunity Fund incurred in connection with the
transactions contemplated by the Waivers and the Amendments on the earlier to occur of (x) the
Waiver Termination Date and (y) the date of the consummation of the transactions contemplated by
the Amendments. Except as otherwise set forth in this Agreement and the Transaction Documents,
each party to this Agreement shall bear its own expenses in connection with transactions
contemplated hereby.



     6. Effectiveness. Upon execution of Waivers by the Company and the Required Holders,
this Waiver shall become effective as of the date first written above (the “Effective Date”).



     7. Disclosure of Transactions and Other Material Information. On or before 5:30 p.m.,
New York City time, on the first Business Day following the date of this Waiver, the Company shall
issue a press release and file a Current Report on Form 8-K describing the terms of the
transactions contemplated by this Waiver in the form required by the 1934 Act and attaching this
Waiver (including Exhibit A attached hereto) as an exhibit to such filing (including all
attachments, the “8-K Filing”). From and after the filing of the 8-K Filing with the SEC, no Buyer
shall be in possession of any material, nonpublic information received from the Company, any of its
Subsidiaries or any of their respective officers, directors, employees or agents, that is not
disclosed in the 8-K Filing.



     8. Remedies. The Investor and each holder of the Securities shall have all rights and
remedies set forth in the Transaction Documents and all rights and remedies which such holders have
been granted at any time under any other agreement or contract and all of the rights which such
holders have under any law. Any Person having any rights under any provision of this Waiver shall
be entitled to enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this



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Waiver and to exercise all other rights granted by law. Furthermore, the Company recognizes
that in the event that it fails to perform, observe, or discharge any or all of its obligations
under this Waiver, any remedy at law may prove to be inadequate relief to the Investor. The
Company therefore agrees that the Investor shall be entitled to seek temporary and permanent
injunctive relief in any such case without the necessity of proving actual damages and without
posting a bond or other security.



     9. Independent Nature of Investor’s Obligations and Rights. The obligations of the
Investor under this Waiver or any other Transaction Document are several and not joint with the
obligations of any other Buyer, and the Investor shall not be responsible in any way for the
performance of the obligations of any other Buyer under any Transaction Document or Other Waiver.
Nothing contained herein or in this Waiver, any Other Waiver or any other Transaction Document, and
no action taken by the Investor pursuant hereto, shall be deemed to constitute the Investor and
other Buyers as a partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Investor and other Buyers are in any way acting in concert or as a
group with respect to such obligations or the transactions contemplated by this Waiver, any Other
Waiver or any other Transaction Document and the Company acknowledges that the Buyers are not
acting in concert or as a group with respect to such obligations or the transactions contemplated
by this Waiver, any Other Waiver and any other Transaction Document. The Company and the Investor
confirm that the Investor has independently participated in the negotiation of the transactions
contemplated hereby with the advice of its own counsel and advisors. The Investor shall be
entitled to independently protect and enforce its rights, including, without limitation, the rights
arising out of this Waiver, any Other Waiver or out of any other Transaction Documents, and it
shall not be necessary for any other Buyer to be joined as an additional party in any proceeding
for such purpose.



     10. No Third Party Beneficiaries. This Waiver is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other Person.



     11. Counterparts. This Waiver 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 to be an original and all of which taken together shall constitute but one and the
same instrument.



     12. Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Waiver shall be governed by the
internal laws of the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and



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consents to process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address for such notices to it under this Waiver and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS WAIVER OR ANY TRANSACTION CONTEMPLATED HEREBY.



[Signature Page Follows]






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     IN WITNESS WHEREOF, this Waiver has been executed as of the date first written above.



	 	 	 	 	 
	 	HIGHLINE CAPITAL INTERNATIONAL, LTD.

 	 
	 	By:  	/s/
Howard M. Singer 	 
	 	 	Name:  	Howard M. Singer 	 
	 	 	Title:  	COO 	 
	 



	 	 	 	 	 
	 	

AGREED TO AND ACCEPTED BY:





CASH SYSTEMS, INC.

 	 
	 	By:  	/s/
Michael Rumbolz 	 
	 	 	Name:  	Michael Rumbolz 	 
	 	 	Title:  	Chief Executive Officer 	 
	 




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Exhibit A




	 	 	 	 	 
	Face Amount

	 	$22,000,000

(10% increase in face amount)

	Coupon

	 	 	7.5	%
	Warrants

	 	487,500

(175,000 share increase)

	 

	 	Adjusted to 20% premium to trailing 3-day VWAP ending August 14, 2007

	Warrant strike

	 	Floor price of $7.25 and ceiling price of $8.00

	Additional put date

	 	§ Up to $8mm of face value putable on 10/10/08 @ par

	Call date

	 	§ Up to $8mm of face value callable on 10/10/08 @ 130%







Covenant adjustments

($ millions)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Jun	 	 	Sep	 	 	Dec	 	 	Mar	 	 	Jun	 	 	Sep	 	 	Dec	 	 	 	 
	 	 	2007	 	 	2007	 	 	2007	 	 	2008	 	 	2008	 	 	2008	 	 	2008	 	 	Thereafter	 
	Consolidated EBITDA
	 	$	0.25	 	 	$	0.25	 	 	$	0.25	 	 	$	0.50	 	 	$	1.00	 	 	$	1.25	 	 	$	1.50	 	 	$	1.75	 
	Total Debt to
EBITDA Ratio
	 	NA	 	 	NA	 	 	NA	 	 	NA	 	 	NA	 	 	NA	 	 	NA	 	 	$	4.75