Exhibit 10.3
SUPPLEMENTAL DEED
AMENDING A FACILITY AGREEMENT DATED 6 JUNE 2006
Dated ___ 2006
TRM (ATM) LIMITED
as the Company
GSO LUXEMBOURG OFFSHORE FUNDING S.AR.L
as Lender
XXXXX FARGO FOOTHILL INC.
as Lender, Facility Agent and Security Agent
TRM CORPORATION
as TRM
XXXXXXX XXXXXXXXX LLP
00 XXXXXXXX
XXXXXX
XX0X 0XX
TABLE OF CONTENTS
Page
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1. Definitions and Interpretation........................................ 1
2. Amendments............................................................ 2
3. Waivers............................................................... 4
4. Representations....................................................... 4
5. Confirmations......................................................... 4
6. Fees and Expenses..................................................... 5
7. Finance Document...................................................... 5
8. Counterparts.......................................................... 5
9. Law and Jurisdiction.................................................. 5
SCHEDULE ................................................................ 6
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THIS DEED (this "DEED") is dated_____ 2006 and made between:
1. TRM (ATM) LIMITED, a company incorporated in England and Wales with
registered number 3782309 and whose registered office is at 0x Xxxxxxxxxx,
Xxxxxxx Xxx, Xxxxxxx XX00 0XX, Xxxxxxx (the "COMPANY");
2. GSO LUXEMBOURG ONSHORE FUNDING S.AR.L, of 000 Xxx Xxxxxxx Xxxxxx, X-0000
Xxxxxxxxxx, a company formed under the laws of the Grand Duchy of
Luxembourg ("GSO") and XXXXX FARGO FOOTHILL INC, a California corporation
of Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, XXX (each a "LENDER" and
together the "LENDERS");
3. XXXXX FARGO FOOTHILL INC, a California corporation of Xxx Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, XXX ("XXXXX") (the "FACILITY AGENT");
4. XXXXX FARGO FOOTHILL INC, a California corporation of Xxx Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, XXX (the "SECURITY AGENT"); and
5. TRM CORPORATION, a corporation organised and existing under the laws of the
State of Oregon, USA of 0000 X.X. 000xx Xxxxxx Xxxxxxxx, XX 00000, XXX
("TRM").
RECITALS
A. Under the terms of a facility agreement (the "FACILITY AGREEMENT") dated 6
June 2006 and entered into between the Company and GSO in its various
capacities as Original Lender, the Facility Agent and the Security Agent,
GSO as Original Lender (as defined in the Facility Agreement) agreed to
make available to the Company a loan facility in the aggregate maximum
amount of L12,903,919.57.
B. By a Transfer Certificate dated 3rd August 2006, L1,548,470.35 of the
Loan Facility was transferred by GSO to Xxxxx.
C. By a Supplemental Deed dated 3rd August 2006 (the "SUPPLEMENTAL DEED"),
Xxxxx was appointed Facility Agent and Security Agent in succession to GSO
who resigned as Facility Agent and Security Agent.
D. The parties to the Facility Agreement are willing to amend the terms of the
Facility Agreement in accordance with the terms set out below.
E. This Deed is supplemental to the Facility Agreement (as amended by the
Supplemental Deed).
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
In this Deed (including the recitals) unless the context requires otherwise
or unless otherwise defined or provided for in this Deed, words and
expressions shall have the same meanings as are attributed to them under
the Facility Agreement. In addition, the following words and expressions
shall have the following meanings:
"CONDITIONS PRECEDENT" means the conditions precedent set out in the
Schedule (Conditions Precedent).
"EFFECTIVE DATE" means the date on which the Facility Agent notifies the
Company that the Conditions Precedent have been satisfied or waived.
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"PARTIES" means the parties to this Deed.
The provisions of Clause 1.2 (Construction) of the Facility Agreement shall
be included in this Deed as if references to the Facility Agreement were
references to this Deed.
2. AMENDMENTS
The Parties (other than TRM) agree that with effect from the Effective
Date, the Facility Agreement shall be amended by:
2.1 the insertion of the following new definitions in Clause 1.1 (Definitions)
in alphabetical order:
""CASH PAY MARGIN" means 4.00 per cent. per annum.";
""CERTIFIED COPY" means in relation to any document, a copy of such
document bearing the endorsement "Certified a true, complete and accurate
copy of the original, which has not been amended, varied or supplemented"
signed and dated by a duly authorised officer of the company.";
""DISPOSAL PROCEEDS" means the consideration received by the Company for
any disposal made by it (except for Excluded Disposal Proceeds) and after
deducting:
(a) any reasonable expenses which are incurred by the Company; and
(b) any Tax incurred and required to be paid by the Company in connection
with the disposal (as reasonably determined by the Company, on the
basis of existing rates and taking account of any available credit,
deduction or allowance).";
""EXCLUDED DISPOSAL PROCEEDS" means any Disposal Proceeds received by the
Company from a disposal referred to in paragraph 22.3(b)(i).";
""PIK MARGIN" means 2.00 per cent. per annum.";
2.2 the amendment of the definition of "Margin" in Clause 1.1 (Definitions) to
read as follows:
""MARGIN" means the Cash Pay Margin and the PIK Margin.";
2.3 the amendment of the definition of "Termination Date" in Clause 1.1
(Definitions) to read as follows:
""TERMINATION DATE" means 28th February 2007.";
2.4 the amendment of the definition of "US Credit Agreement " in Clause 1.1
(Definitions) to read as follows:
""US CREDIT AGREEMENT" means:
(a) a first lien credit agreement dated 6 June 2006 between the Company,
TRM ATM Corporation, TRM Copy Centers (USA) Corporation, TRM (Canada)
Corporation, Access Cash International L.L.C., the US First Lien Agent
(as defined therein) and the lenders from time to time party thereto;
or
(b) a second lien credit agreement dated 6 June 2006 between the Company,
TRM ATM Corporation, TRM Copy Centers (USA) Corporation, TRM (Canada)
Corporation,
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Access Cash International L.L.C., US Second Lien Agent (as defined
therein) and the lenders from time to time party thereto.";
2.5 the amendment of Clause 7.1 (Repayment) to read as follows:
"The Loan together with all other amounts outstanding under the terms of
the Facility Agreement shall be repaid in full on the Termination Date.";
2.6 the deletion of existing paragraphs 8.3(a) and (b) (Mandatory Prepayments)
and the insertion of a new paragraph 8.3(a) to read as follows:
"(a) The Company shall prepay the Loan in an amount equal to any Disposal
Proceeds received by the Company prior to the Termination Date.",
and existing paragraphs 8.3(c) and (d) shall be renumbered 8.3(b) and (c)
accordingly;
2.7 the amendment of Clause 9.2 (Payment of interest) to read as follows:
"(a) The Company shall pay accrued interest in cash on the outstanding
amount of the Loan on the last day of each Interest Period. The amount
of interest payable in cash will be equal to the amount of interest
accrued at the rate applicable to the Loan during that Interest Period
under Clause 9.1 (Calculation of interest) excluding the portion
accrued in respect of the PIK Margin;
(b) In addition to the cash pay interest referred to in paragraph (a)
above, a further amount of interest will accrue on the Loan at a rate
equal to the PIK Margin. Any such interest accrued will, at the end of
each Interest Period, be capitalised and added to the principal amount
of the Loan and shall be repaid on the Termination Date.";
2.8 the deletion of Clause 20 (Financial Covenants) in its entirety and the
replacement with a new Clause 20 (Financial Covenants) to read as follows:
"FINANCIAL COVENANTS.
The undertakings in this Clause 20 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
No member of the TRM Group shall:
Minimum EBITDA. permit their Consolidated EBITDA for any calendar
month to be less than the amount set forth below with respect to such
month:
MONTH MINIMUM EBITDA
-------------- --------------
October, 2006 $ 875,000
November, 2006 $ 900,000
December, 2006 $ 900,000
January, 2007 $1,050,000
February, 2007 $1,150,000
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Defined terms used in this Clause are defined in the US Credit
Agreement (as amended from time to time) as if the same were restated
in this Agreement and notwithstanding the fact that the US Credit
Agreement may have terminated.";
2.9 the amendment of the first paragraph in Clause 21 to read as follows:
"Other than Clause 21.15 which shall survive the repayment in full of all
amounts outstanding under the Finance Documents, the undertakings in this
Clause 21 remain in force from the date of this Agreement for so long as
any amount is outstanding under the Finance Documents.";
2.10 the insertion of a new Clause 21.15 (DIVIDEND OF EXCESS DISPOSAL PROCEEDS)
as follows:
"21.15 DIVIDEND OF EXCESS DISPOSAL PROCEEDS
In the event that the aggregate amount of Disposal Proceeds received
by the Company exceeds the Loan (and all other amounts outstanding
under the Finance Documents), the Company shall as soon as reasonably
practicable, following prepayment of the Loan (together with all other
amounts outstanding under the Finance Documents) in accordance with
Clause 8.3(a), pay any excess to TRM by way of dividend or otherwise
for application by TRM towards repayment of the US Credit Agreement.";
2.11 the deletion of paragraph 22.3(b)(ii) (Disposals) and replacing it with a
new paragraph 22.3(b)(ii) (Disposals) as follows:
"(ii) of assets where the Disposal Proceeds are used to prepay the Loan
provided that such prepayment occurs within 2 Business Days following
receipt by the Company of the relevant Disposal Proceeds.".
3. WAIVERS
In consideration of the Company entering into this Deed, the Lenders hereby
waive the Events of Default occasioned by breaches of the covenants set out
in Clause 20(a) and (b) of the Facility Agreement for the measurement
period ended 30th September 2006.
4. REPRESENTATIONS
The Company confirms to the Finance Parties that on the date of this Deed
and on the Effective Date, the Repeating Representations:
(a) are true; and
(b) would also be true if references to the Finance Documents includes the
Facility Agreement as amended by this Deed.
In each case, each Repeating Representation is applied to the circumstances
then existing and in the case of the confirmation made on the date of this
Deed, as if the Effective Date had occurred.
5. CONFIRMATIONS
5.1 The Parties confirm that save as and to the extent expressly varied in this
Deed, the Facility Agreement as amended by this Deed remains in full force
and effect and each reference to the
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Facility Agreement in each Finance Document shall be to the Facility
Agreement as amended by this Deed.
5.2 With effect from the Effective Date, the Company and TRM confirm that any
security or guarantee created or given by it under a Finance Document will:
(a) continue in full force and effect; and
(b) secure or guarantee its liabilities and obligations to the Finance
Parties under the Facility Agreement as amended by this Deed.
6. FEES AND EXPENSES
6.1 The Company shall on the date hereof pay a fee of one per cent of the
amount of the Loan upon the execution of this Deed. Such fee shall be
capitalised and added to the principal amount of the Loan and shall be
repaid on the Termination Date.
6.2 The Company shall pay, promptly on demand and receipt of the relevant
invoices, all costs and expenses (including legal fees and disbursements
thereon) incurred or sustained by any of the Finance Parties in connection
with the preparation, negotiation, printing and execution of this Deed and
all documents and transactions contemplated by this Deed.
7. FINANCE DOCUMENT
The Company, the Facility Agent and the Security Agent designate this Deed
as a Finance Document.
8. COUNTERPARTS
This Deed may be executed in any number of counterparts and all such
counterparts when executed and taken together shall constitute one and the
same Deed.
9. LAW AND JURISDICTION
This Deed is governed by and shall be construed according to the law of
England whose courts shall have exclusive jurisdiction to hear and decide
any suit, action or proceedings and to settle any disputes which may arise
out of or in connection therewith and for these purposes each party
irrevocably submits to the jurisdiction of the courts of England.
This Deed has been executed as a Deed and has been delivered on the date stated
at the beginning of this Deed.
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SCHEDULE
CONDITIONS PRECEDENT
1. The Facility Agent shall have received a Certified Copy of each of the
following in form and substance satisfactory to it:
(a) the minutes of a meeting of the board of directors of the Company and
TRM (including the resolutions passed at those meetings):
(i) approving and authorising the execution, delivery and performance
of this Deed and any other related documents to which it is a
party on the terms and conditions of those documents;
(ii) showing that the board meeting was quorate, that due
consideration was given by all directors present of that
company's obligations and liabilities arising under those
documents to which it is a party and that all declarations of
interests required in connection with this Deed and any other
related documents to which it is a party were made; and
(iii) authorising any director whose name and specimen signature is
set out in those minutes to sign or otherwise attest the
execution of those documents and any other documents to be
executed or delivered pursuant to those documents;
(b) a certificate in respect of the Company (signed by the company's
secretary or a director of the relevant company) confirming that:
(i) there has been no change since 6 June 2006 to its certificate of
incorporation (and any relative certificate of change of name);
(ii) there has been no change since 6 June 2006 to its memorandum and
articles of association;
(iii) that there are no outstanding Defaults or Events of Defaults
under the Facility Agreement other than those listed in Clause 3
of this Deed; and
(iv) that there are no outstanding defaults under any Material
Contract including, without limitation, the Vault Cash Agreements
(as defined in the US Credit Agreement); and
(c) a certificate in respect of TRM (signed by the company's secretary or
a director of the relevant company) confirming that:
(i) there has been no change since 6 June 2006 to its certificate of
incorporation (and any relative certificate of change of name);
and
(ii) there has been no change since 6 June 2006 to its memorandum and
articles of association;
(d) an Amendment to the First Lien Credit Agreement and an Amended and
Restated Second Lien Loan Agreement, each dated on or about the date
of this Deed and duly executed by the parties thereto.
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2. The Facility Agent shall have received confirmation that the legal fees of
Xxxxxxx XxXxxxxxx LLP and Xxxxxx Xxxxxx Rosenman Cornish LLP invoiced have
been paid.
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THE COMPANY
EXECUTED as a Deed by )
TRM (ATM) LIMITED ) Director
acting by two Directors or )
one Director and its Secretary ) Director/Secretary
THE LENDERS
EXECUTED as a Deed by )
GSO LUXEMBOURG OFFSHORE )
FUNDING SARL ) Authorised Signatory
acting by )
)
being persons having power to act )
on its behalf in accordance with its constitution )
EXECUTED as a Deed by )
XXXXX FARGO FOOTHILL INC. ) Authorised Signatory
acting by )
)
being persons having power to act )
on its behalf in accordance with its constitution )
THE FACILITY AGENT
EXECUTED as a Deed by )
XXXXX FARGO FOOTHILL INC. ) Authorised Signatory
acting by )
)
being persons having power to act )
on its behalf in accordance with its constitution )
THE SECURITY AGENT
EXECUTED as a Deed by )
XXXXX FARGO FOOTHILL INC. ) Authorised Signatory
acting by )
)
being persons having power to act )
on its behalf in accordance with its constitution )
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TRM
EXECUTED as a Deed by )
TRM CORPORATION ) Authorised Signatory
acting by )
)
being persons having power to act )
on its behalf in accordance with its constitution )
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