ex10-1.htm - Generated by SEC Publisher for SEC Filing










 








FIRST AMENDMENT TO
CREDIT AGREEMENT


THIS FIRST
AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of July 25, 2011,
is entered into by and among CARDTRONICS, INC., a Delaware corporation
(the “Borrower”), each of the Guarantors party hereto (the “Guarantors”),
each of the Lenders party hereto (the “Lenders”) and JPMorgan Chase Bank, N.A.,
as Administrative Agent for the Lenders (the “Agent”). 


Preliminary Statement


WHEREAS, the Borrower, the Guarantors, the Lenders and the
Agent entered into that certain Credit Agreement dated as of July 15, 2010 (as
hereby amended and as from time to time further
amended, modified, supplemented, restated or amended and restated, the “Credit
Agreement”), pursuant to which the Lenders agreed to make available to the
Borrower a revolving credit facility; and 


WHEREAS, the Borrower has now asked the Agent and the Lenders
to amend certain provisions of the Credit Agreement, including, without limitation,
an amendment to increase the aggregate amount of the Lenders’ Commitments to
$250,000,000, a portion of which will be used by the Borrower to provide
liquidity for the acquisition of the ATM businesses of EDC Holdings, LLC (“EDC”);
and


WHEREAS, the Agent and Lenders are willing to do so subject
to the terms and conditions set forth herein, provided that the Borrower and
Guarantors ratify and confirm all of their respective obligations under the
Credit Agreement and the Loan Documents; 


NOW, THEREFORE, in consideration of the premises and further
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:  


1.                  
 Defined Terms»


.  Unless
otherwise defined herein, capitalized terms used herein have the meanings
assigned to them in the Credit Agreement.


2.                  
 Amendments to Section 1.01»


.  Section 1.01 of the Credit
Agreement is hereby amended as follows:


(a)                
The pricing grid contained in the
definition of “Applicable Margin” is hereby deleted in its entirety and
replaced with the following:


******


(b)                
The definition of “Change in Law”
is hereby deleted in its entirety and replaced with the following:


“Change in Law”
means (a) the adoption of any Law after July 25, 2011, (b) any change
in any Law or in the interpretation or application thereof by any Governmental
Authority after July 25, 2011 or (c) compliance by any Lender or the
Issuing Lender (or, for purposes of Section 2.14(b), by any lending
office of such Lender or by such Lender’s or the Issuing Lender’s holding
company, if any) with any request, guideline or directive (whether or not
having the force of Law) of any Governmental Authority made or issued after July
25, 2011; provided  however, that notwithstanding anything herein
to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act
and all requests, rules, guidelines or directives thereunder or issued in
connection therewith shall be deemed to be a “Change in Law”, regardless of the
date enacted, adopted or issued, and all requests, rules, regulations,
guidelines or directives promulgated by the Bank for International Settlements,
the Basel Committee on Banking Regulations and
Supervisory Practices (or any successor or similar authority) or any Governmental
Authority with respect to the implementation of the Basel III Accord shall be
deemed to be a “Change in Law” regardless of the date enacted, adopted or
issued.







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(c)                
The pricing grid contained in the
definition of “Commitment Fee Rate” is hereby deleted in its entirety and
replaced with the following:


******


(d)                
The definition of “Termination
Date” is hereby deleted in its entirety and replaced with the following:


“Termination Date”
means July 15, 2016.


3.                  
 Amendment to Section 2.01(b)»


.  Section 2.01(b) of the Credit
Agreement is hereby amended to add the following two sentences to the end of
said Section:


“If so requested, only
those Lenders designated on Schedule 2.01 as having Commitments in an
Alternative Currency shall participate in making such Revolving Loans,
notwithstanding that this results in such Lenders having amounts owing by the
Borrower on a non pro rata basis.  Following the advance of a Revolving Loan in
an Alternative Currency, the provisions of Section 2.02(e) shall apply
to subsequent Revolving Loans.


4.                  
 Amendment to Section 2.02»


.  Section 2.02 of the Credit
Agreement is hereby amended to add the following new paragraph (e) at the end
of said Section:


“If a Revolving Loan is
made in an Alternative Currency, subsequent Revolving Loans requested in, or
converted into, Dollars shall be advanced first by Lenders that do not have
Commitments in an Alternative Currency until such time as the amount owing to
each of the Lenders under the Revolving Loans is equal to its Applicable
Percentage of the aggregate Commitments.”


5.                  
 Amendment to Section 2.19(a)»


.  Section 2.19(a) of the Credit
Agreement is hereby amended by restating clause (iii) thereof as follows:


“(iii) the aggregate
amount of the Lenders’ Commitments, after giving effect to any such increase, shall
not exceed $325,000,000.”


6.                  
 Amendment to Section 6.07»


.  Section 6.07 of the Credit
Agreement is amended by restating clause (e) thereof as follows:


“(e)         redemptions
of capital stock of Persons other than employees, directors or officers of the Borrower
on the following conditions: the amount of such redemption shall not be
limited, so long as, if the amount of such redemption, when combined with all
other redemptions made under this clause (e) during the term of this Agreement,
exceeds $10,000,000, the Borrower demonstrates, at the time of such
redemption(s), pro forma compliance with Section 6.18 and a pro forma
Senior Leverage Ratio of not more than 1.75 to 1.0.”


7.                  
 Amendment to Schedule 2.01»


.  Schedule 2.01 of the Credit
Agreement is hereby deleted in its entirety and replaced with Schedule 2.01
attached hereto.


8.                  
 Conditions Precedent»


.  The effectiveness of this
Amendment is subject to satisfaction of the following conditions precedent:


 







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(a)                
no Default or Event of Default
shall exist;


(b)                
the Agent shall have received counterparts
of this Amendment, duly executed by the Borrower, the Guarantors and the Lenders;


(c)                
each of J.P. Morgan Securities LLC
and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as the Arrangers, the
Lenders and the Agent shall have received all fees required to be paid to it,
and all expenses for which invoices have been presented prior to the date hereof (including the reasonable fees and
expenses of legal counsel to the Agent for which invoices have been presented
at least forty-eight hours prior to the date hereof),
but without prejudice to the later payment of accrued fees and expenses not so
invoiced;


(d)                
the Agent shall have received (i)
an officer’s certificate of the Borrower and each Guarantor, attaching the
certificate of formation (or similar document) of the Borrower or such
Guarantor, as applicable, certified by the relevant authority of its
jurisdiction of organization, a true and correct copy of the resolutions of the
board of directors (or similar governing body) of the Borrower or such
Guarantor authorizing the amendments contemplated hereby and the incumbency and
specimen signatures of each natural person executing this Amendment on behalf
of the Borrower or such Guarantor, and (ii) a good standing certificate for the
Borrower and each Guarantor from its jurisdiction of organization;


(e)                
the acquisition of EDC shall be
consummated contemporaneously with the date hereof and substantially similar to
the terms and conditions of the purchase and sale agreement relating to such
acquisition (the “EDC Acquisition Agreement”), without waiver or
amendment of any material terms thereof not otherwise approved by the Agent;


(f)                 
the Agent shall have received a
duly executed copy of the EDC Acquisition Agreement, which shall be reasonably
acceptable to the Agent;


(g)                
the Agent shall have received a
schedule showing the Borrower’s calculation of EBITDA on a pro forma basis
taking into account the acquisition of EDC and including all adjustments to
EBITDA used in making such calculation; 


(h)                
the Agent shall have received a
pro forma Compliance Certificate as of June 30, 2011; and


(i)                  
the Agent shall have received an
Addendum executed by EDC ATM Subsidiary, LLC (“EDC ATM”) and such other
documents relating to EDC ATM as the Agent shall reasonably request.


9.                  
 Ratification»


.  Each
of the Borrower and Guarantors hereby ratifies all of its Obligations under the
Credit Agreement and each of the Loan Documents to which it is a party, and
agrees and acknowledges that the Credit Agreement and each of the Loan Documents
to which it is a party are and shall continue to be in full force and effect as
amended and modified by this Amendment.  Nothing in this Amendment
extinguishes, novates or releases any right, claim, lien, security interest or
entitlement of any of the Lenders or the Administrative Agent created by or
contained in any of such documents nor are the Borrower nor Guarantors released
from any covenant, warranty or obligation created by or contained herein or
therein.


10.               
 Representations and Warranties»


.  Each
of the Borrower and Guarantors hereby represents and warrants to the Lenders
and the Administrative Agent that (a) this Amendment has been duly
executed and delivered on behalf of each of the Borrower and Guarantors,
(b) this Amendment constitutes a valid and legally binding agreement
enforceable against each of the Borrower and Guarantors in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law, (c) the representations and
warranties contained in the Credit Agreement and the Loan Documents are true
and correct on and as of the date hereof in all material respects as though
made as of the date hereof, except for such representations and warranties as
are by their express terms limited to a specific date, in which case such
representations and warranties were true and correct in all material respects
as of such specific date, (d) no Default or Event
of Default exists under the Credit Agreement or under any Loan Document and
(e) the execution, delivery and performance of this Amendment has been
duly authorized by each of the Borrower and Guarantors.







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11.               
 Release and Indemnity»


.  


(a)                
The Borrower hereby releases and
forever discharges the Agent and each of the Lenders and each affiliate thereof
and each of their respective employees, officers, directors, trustees, agents,
attorneys, successors, assigns or other representatives from any and all
claims, demands, damages, actions, cross-actions, causes of action, costs and
expenses (including legal expenses), of any kind or nature whatsoever, whether
based on law or equity, which any of said parties has held or may now own or
hold, whether known or unknown, for or because of any matter or thing done,
omitted or suffered to be done on or before the actual date upon which this
Amendment is signed by any of such parties (i) arising directly or indirectly
out of the Loan Documents, or any other documents, instruments or any other
transactions relating thereto and/or (ii) relating directly or indirectly to
all transactions by and between the Borrower or its representatives and the
Agent, and each Lender or any of their respective directors, officers, agents,
employees, attorneys or other representatives.  Such release, waiver, acquittal
and discharge shall and does include, without limitation, any claims of usury,
fraud, duress, misrepresentation, lender liability, control, exercise of
remedies and all similar items and claims, which may, or could be, asserted by
the Borrower including any such caused by the actions or negligence of the
indemnified party (other than its gross negligence or willful misconduct). 


(b)                
The Borrower hereby ratifies the
indemnification provisions contained in the Loan Documents, including, without
limitation, Section 10.03 of the Credit Agreement, and agrees that this Amendment
and losses, claims, damages and expenses related thereto shall be covered by
such indemnities. 


12.               
 New Lenders»


.  


(a)                
By its execution of this
Amendment, each New Lender shall become a party to the Credit Agreement as of
the date first above written and shall have all the rights and obligations,
severally and not jointly, of a “Lender” under the Credit Agreement and the
other Loan Documents as if each were an original signatory thereto, and shall
agree, and does hereby agree, severally and not jointly, to be bound by the
terms and conditions set forth in the Credit Agreement and the other Loan
Documents to which the Lenders are a party, in each case, as if each were an
original signatory thereto.


(b)                
The New Lender hereby (a)
represents and warrants that it is legally authorized to enter into this
Amendment and become a “Lender” under the Credit Agreement; (b) confirms that
it has received a copy of the Credit Agreement, together with the copies of the
most recent financial statements delivered pursuant to Section 5.01 thereof and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Amendment and become a
“Lender” under the Credit Agreement; (c) agrees that it will,
independently and without reliance upon the Administrative Agent or any other
Lender and, based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (d) confirms that it is a New
Lender under the Credit Agreement, as defined therein; (e) appoints and
authorizes the Agent to take such action as an agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto; (f) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Credit Agreement are required
to be performed by it as a Lender; and (g) agrees that it will keep
confidential all information with respect to the Borrower furnished to it by
the Borrower or the other Lenders (other than information generally available
to the public or otherwise available to the New Lender on a non-confidential
basis).


13.               
 Counterparts»


.  This Amendment may be signed
in any number of counterparts, which may be delivered in original, facsimile or
electronic form each of which shall be construed as an original, but all of
which together shall constitute one and the same instrument.


14.               
 Governing Law»


.  This Amendment shall be
construed in accordance with and governed by the Law of the State of Texas
without regard to any choice-of-law provisions that would require the
application of the law of another jurisdiction.


 







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15.               
 Final Agreement of the Parties»


.  THIS
AMENDMENT, THE CREDIT AGREEMENT AND THE LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.


[Signature pages follow]


 
















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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: 


 


                                                                                                CARDTRONICS,
INC., 

a Delaware corporation 


 


 


By:         /s/ Todd Ruden_____________________________ 

Todd Ruden

______ Senior Vice President – Planning & Treasurer


 


 


                                                                                                GUARANTORS:


                                                                                                 


                                                                                                CARDTRONICS
USA, INC., 

a Delaware corporation 


 


 


By:         /s/ Todd Ruden_____________________________ 


                Todd Ruden


                Treasurer


 


 


                                                                                                CARDTRONICS
HOLDINGS, LLC, 

a Delaware limited liability company


 


 


By:         /s/ Todd Ruden_____________________________ 


                Todd Ruden


                Treasurer 


 


 


                                                                                                ATM
NATIONAL, LLC, 

a Delaware limited liability company 


 


 


By:         /s/ Todd Ruden_____________________________ 


                Todd Ruden


                Treasurer


 


 












 










 








 








                                                                                                ADMINISTRATIVE AGENT:


 


                                                                                                JPMORGAN
CHASE BANK, N.A.


 


 


                                                                                                By:         /s/ John Sarvadi____________________________ 


                                                                                                                John
Sarvadi


                                                                                                                Managing
Director


 


                                                                                                 












 










 








 








                                                                                                LENDER: 


 


                                                                                                BANK
OF AMERICA, N.A.

                                                                                                


 


                                                                                                By:         /s/
Gary L. Mingle___________________________ 


                                                                                                Name:    Gary
L. Mingle


                                                                                                Title:       Senior
Vice -President


 


 












 










 








 








                                                                                                LENDER: 


 


                                                                                                WELLS
FARGO BANK, N.A.


 


 


                                                                                                By:         /s/
Geri Landa______________________________ 


                                                                                                Name:    Geri
Landa


                                                                                                Title:       Senior
Vice President


 


 












 










 








 








                                                                                                LENDER: 


 


                                                                                                AMEGY
BANK NATIONAL ASSOCIATION


 


 


                                                                                                By:         /s/
Kelly Nash______________________________ 


                                                                                                Name:    Kelly
Nash


                                                                                                Title:       Corporate
Banking Officer


 


 












 










 








 








                                                                                                LENDER: 


 


                                                                                                COMPASS
BANK


 


 


                                                                                                By:         /s/
Stuart Murray___________________________ 


                                                                                                Name:    Stuart
Murray


                                                                                                Title:       Senior
Vice President


 












 










 








 








                                                                                                LENDER: 


 


                                                                                                SUNTRUST
BANK


 


 


                                                                                                By:         /s/
David A. Bennett_________________________ 


                                                                                                Name:    David
A. Bennett


                                                                                                Title:       Vice
President


 












 










 








 








                                                                                                LENDER: 


 


                                                                                                BRANCH
BANKING AND TRUST COMPANY


 


 


                                                                                                By:         /s/
Matt McCain____________________________  


                                                                                                Name:    Matt
McCain


                                                                                                Title:       Senior
Vice President


 





 









 










 








 








LENDER:


 


                                                                                                CAPITAL
ONE, N.A.


 


 


                                                                                                By:         /s/
Yasmin Elkhatib_________________________ 


                                                                                                Name:    Yasmin
Elkhatib


                                                                                                Title:       Vice
President


 
















 










 








 








SCHEDULE 2.01


 


COMMITMENTS


 


	
  Lenders

  	
  Commitment

  
	
  JPMorgan Chase Bank, N.A.

  	
  $41,000,000

  
	
  Bank of America, N.A.

  	
  $41,000,000

  
	
  Wells Fargo Bank, N.A.

  	
  $38,000,000

  
	
  Amegy Bank National Association

  	
  $30,000,000

  
	
  Compass Bank

  	
  $30,000,000

  
	
  SunTrust Bank

  	
  $30,000,000

  
	
  Branch Banking and Trust Company

  	
  $20,000,000

  
	
  Capital One, N.A.

  	
  $20,000,000

  
	
  TOTAL

  	
  $250,000,000