SIXTEENTH AMENDMENT TO LOAN AND SERVICING AGREEMENT
Exhibit 10.8
SIXTEENTH AMENDMENT TO LOAN AND SERVICING AGREEMENT
THIS SIXTEENTH AMENDMENT TO LOAN AND SERVICING AGREEMENT, dated as of April 18, 2008 (this
“Amendment”), is entered into among TRM Inventory Funding Trust (“Borrower”), TRM
ATM Corporation, in its individual capacity (“TRM ATM”) and as Servicer (in such capacity,
“Servicer”), Autobahn Funding Company LLC (“Lender”), DZ Bank AG, Deutsche
Zentral-Genossenschaftsbank Frankfurt am Main, as Administrative Agent (in such capacity,
“Administrative Agent”) and as Liquidity Agent (in such capacity “Liquidity
Agent”), and U.S. Bank National Association, as Collateral Agent (“Collateral Agent”).
RECITALS
A. Borrower, TRM ATM, Servicer, Lender, Administrative Agent, Liquidity Agent and Collateral
Agent are each a party to that certain Loan and Servicing Agreement, dated as of March 17, 2000 (as
amended, the “Agreement”);
B. TRM Corporation (“TRM”) has refinanced certain subordinated indebtedness pursuant
to the Securities Purchase Agreement, dated April 18, 2008, by and among, TRM, Xxxxx Xxxxxx & Co.,
LLC, as a purchaser, the administrative agent and the collateral agent (“Xxxxx”), and the
other purchasers party thereto (together with Xxxxx, the “Purchasers”), in connection with
which TRM will issue warrants to the Purchasers and appoint certain representatives of the
Purchasers to the board of directors of TRM (collectively, the “Transaction”); and
C. The parties to the Agreement desire to amend the Agreement as hereinafter set forth.
AGREEMENT
1. Certain Defined Terms. Capitalized terms used but not defined herein shall have
the meanings ascribed thereto in the Agreement.
2. Amendments to Agreement. Effective as of the Effective Date (as defined in Section
4 below), the Agreement shall be amended as follows:
2.1 The last sentence of Section 1.06 of the Agreement is hereby amended and restated in its
entirety as follows:
“The Collateral Agent, Administrative Agent and Lender acknowledge that (i)
notwithstanding any deposit of ATM Fees into the ATM Fee Settlement Account (which
is held in the name of the Collateral Agent), TRM ATM shall retain ownership of such
ATM Fees until such ATM Fees are applied in accordance with this Agreement, and (ii)
TRM ATM has informed them that it has granted a subordinated Lien in its right,
title and interest in the ATM Fees to Xxxxx Xxxxxx & Co., LLC, as agent, as
permitted by Section 7.04(d), including all rights of TRM ATM under this Agreement
with respect to such ATM Fees.”
3. Approval of Change in Control. To the extent that the Transaction constitutes a
Change in Control and provided that (i) Xxxxx acquires beneficial ownership of less than 50% of the
outstanding voting stock of TRM and (ii) no more than three representatives of Xxxxx concurrently
serve on the board of directors of TRM (it being acknowledged that a representative of Xxxxx was
previously
appointed to the board of directors of TRM), each of the Administrative Agent, the Liquidity
Agent and the Lender hereby approves such Change in Control and this Amendment shall be deemed to
constitute written approval by the Administrative Agent, the Liquidity Agent and the Lender of such
Change in Control for purposes of Section 9.01(i) of the Agreement.
4. Conditions to Effectiveness. This Amendment shall become effective on the date
(the “Effective Date”) when the Administrative Agent shall have received counterparts of
this Amendment, duly executed by all parties hereto.
5. Representations and Warranties. Each of Borrower, TRM ATM and Servicer represents
and warrants to the other parties hereto that (a) each of the representations and warranties of
such Person set forth in the Agreement is true and correct as of the date of the execution and
delivery of this Amendment by such Person, with the same effect as if made on such date, (b) the
execution and delivery by such Person of this Amendment and the performance by such Person of its
obligations under the Agreement, as amended hereby (as so amended, the “Amended
Agreement”), (i) are within the powers of such Person, (ii) have been duly authorized by all
necessary action on the part of such Person, (iii) have received all necessary governmental
approval and (iv) do not and will not contravene or conflict with (A) any provision of law or the
certificate of incorporation or by-laws or other organizational documents of such Person or (B) any
agreement, judgment, injunction, order, decree or other instrument binding on such Person and (c)
the Amended Agreement is the legal, valid and binding obligation of such Person enforceable against
such Person in accordance with its terms.
6. Effect of Amendment. Except as expressly amended and modified by this Amendment,
all provisions of the Agreement shall remain in full force and effect. After this Amendment
becomes effective, all references in the Agreement to “this Agreement,” “hereof,” “herein” or words
of similar effect referring to the Agreement shall be deemed to be references to the Agreement as
amended by this Amendment. This Amendment shall not be deemed to expressly or impliedly waive,
amend or supplement any provision of the Agreement other than as set forth herein.
7. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties on separate counterparts, and each counterpart shall be deemed to be an original,
and all such counterparts shall together constitute but one and the same instrument.
8. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the law of the State of New York without regard to any otherwise applicable principles of
conflict of laws.
9. Section Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this Amendment, the
Agreement or any provision hereof or thereof.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first above written.
| TRM INVENTORY FUNDING TRUST | ||||||
| By: | Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee |
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| By: | /s/ Xxxxxxx X. Xxxxx, Xx.
|
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| Title: Assistant Vice President | ||||||
| TRM ATM CORPORATION | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx
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| Title: Chief Financial Officer | ||||||
| AUTOBAHN FUNDING COMPANY LLC | ||||||
| By: | DZ Bank AG, Deutsche Zentral- Genossenschaftsbank Frankfurt am Main, as its attorney-in-fact |
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| By: | /s/ Xxxxxxxxx Xxxxxxxxx
|
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| Title: Assistant Vice President | ||||||
| By: | /s/ Xxxxxx Xxxxxx
|
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| Title: First Vice President | ||||||
| DZ BANK AG, DEUTSCHE ZENTRAL- GENOSSENSCHAFTSBANK FRANKFURT AM MAIN, as Administrative Agent and Liquidity Agent |
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| By: | /s/ Xxxxxxxxx Xxxxxxxxx
|
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| Title: Assistant Vice President | ||||||
| By: | /s/ Xxxxxx Xxxxxx
|
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| Title: First Vice President | ||||||
| U.S. BANK NATIONAL ASSOCIATION | ||||||
| By: Name: |
/s/ Xxxx Xxxxxxxxx
|
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| Title: | Vice President | |||||
April 18, 2008
Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
not in its individual capacity
but solely as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Re: Sixteenth Amendment to Loan and Servicing Agreement
We refer (i) to the Deposit Trust Agreement, dated as of March 14, 2000 (the “Trust
Agreement”), among TRM ATM Corporation, as Administrator, GSS Holdings, Inc., as Depositor, and
Wilmington Trust Company, not in its individual capacity but solely as owner trustee (the “Owner
Trustee”) and (ii) the Administration Agreement, dated as of March 17, 2000 (the “Administration
Agreement”) between TRM Inventory Funding Trust and TRM ATM Corporation, as Administrator (the
“Administrator”). Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in or by reference in the Trust Agreement.
The undersigned, being the Administrator of the Trust pursuant to the Administration
Agreement, hereby requests and directs you, as Owner Trustee, to execute and deliver the Sixteenth
Amendment to the Loan and Servicing Agreement in such form as may be tendered to the Owner Trustee
by Xxxxx Xxxxx LLP. By acknowledging below, the Certificateholders acknowledge, agree and consent
to your execution of such documents, and join in giving the instruction and direction set forth in
the preceding sentence.
In order to induce you to take the foregoing action, we hereby agree to indemnify Wilmington
Trust Company, its directors, officers, employees, and agents (individually, an “Indemnitee”) for,
and agree to hold each Indemnitee harmless against, any liability, loss or expense (including,
without limitation legal and other professional fees and expenses) incurred by an Indemnitee in
connection with or arising out of the taking by Wilmington Trust Company, as Owner Trustee, of the
foregoing requested action, all in accordance with Section 6.9 of the Trust Agreement.
This letter of instruction may be executed in any number of counterparts, each of which when
executed and delivered shall be an original, but all of which together shall constitute but one and
the same instrument.
| Very truly yours, TRM ATM CORPORATION, as Administrator |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
Acknowledged, Agreed and Consent to:
AUTOBAHN FUNDING COMPANY LLC
By: DZ Bank AG, Deutsche Zentral-
Genossenschaftsbank Frankfurt am Main,
as its attorney-in-fact
Genossenschaftsbank Frankfurt am Main,
as its attorney-in-fact
By:
|
/s/ Xxxxxxxxx Xxxxxxxxx
|
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| Title: Assistant Vice President | ||||
| GSS HOLDINGS, INC. | ||||
By:
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/s/ Xxxxxxx X. Xxxxxx
|
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| Title: Vice President | ||||
