FIFTEENTH AMENDMENT TO LOAN AND SERVICING AGREEMENT
Exhibit 10.8(o)
FIFTEENTH AMENDMENT TO LOAN AND SERVICING AGREEMENT
THIS FIFTEENTH AMENDMENT TO LOAN AND SERVICING AGREEMENT, dated as of December 21, 2007 (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, 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
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”); and
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 Effective Date (as defined in Section 3
below), the definition of “Excess Concentrations” in the Agreement shall be amended and restated in
its entirety as follows:
2.1 “Excess Concentrations” means, at any time, the sum of
(a) the aggregate of all Cash stored in any single ATM in excess of the
lesser of (A) the applicable insurance coverage with respect to the Cash
stored in such ATM and (B) $80,000 (provided that if (I) such ATM is in a
location where security or other personnel are employed to monitor such
ATM 24 hours a day, the limit specified in clause (B) shall be $160,000 or
(II) such ATM is located in a casino, the limit specified in clause (B)
shall be $300,000), (b) in the event that more than 25% of the ATMs are
located in or on property owned or operated (directly or indirectly) by a
single Person (other than the Pantry Entities or the Cumberland Entities)
or in facilities owned or operated (directly or indirectly) by the same
retailer (other than the Pantry Entities or the Cumberland Entities), an
amount of Cash equal to the product of (i) the average amount of Cash in
all such ATMs and (ii) the number of such ATMs in excess of such 25%
level, (c) in the event that more than 60% of the ATMs are located in or
on property owned or operated (directly or indirectly) by the Pantry
Entities or in facilities owned or operated (directly or indirectly) by
the Pantry Entities, an amount of Cash equal to the product of (i) the
average amount of Cash in all such ATMs and (ii) the number of such ATMs
in excess of such 60% level, (d) in the event that more than 35% of the
ATMs are located in or on property owned or operated (directly or
indirectly) by the Cumberland Entities or in facilities owned or operated
(directly or indirectly) by the Cumberland Entities, an amount of Cash
equal to the product of (i) the average amount of Cash in all such ATMs
and (ii) the number of such ATMs in excess of such 35% level, (e) in the
event that more than 10% of the ATMs have greater than $60,000 in Cash, an
amount of Cash equal to the product of (i) the average amount of Cash in
all such ATMs and (ii) the number of such ATMs in excess of such 10%
level, (f) in the event that more than 2% of the ATMs have greater than
$100,000 in Cash, an amount of Cash equal to the product of (i) the
average amount of Cash in all such ATMs and (ii) the number of such ATMs
in excess of such 2% level, and (g) in the event that more than 5% of the
ATMs have greater than $60,000 in Cash and are located in a single State,
an amount of Cash equal to the product of (i) the average amount of Cash
in all such ATMs and (ii) the number of such ATMs in excess of such 5%
level.
3. Conditions to Effectiveness and Retroactive Application of Amendments. This
Amendment shall become effective as of the date first written above (the “Effective Date”) when the
Administrative Agent shall have received counterparts of this Amendment, duly executed by all
parties hereto.
4. Representations and Warranties. Each of the 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.
5. 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.
6. 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.
7. 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.
8. 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 | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |||||
| Title: Senior Financial Services Officer | ||||||
| TRM ATM CORPORATION | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxx X. Xxxxx | ||||||
| Title: Chief Financial Officer | ||||||
| AUTOBAHN FUNDING COMPANY LLC | ||||||
| By: | DZ Bank AG Deutsche Zentral- | |||||
| Genossenschaftsbank, as its attorney-in-fact | ||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| By: | /s/ Xxxxxxxxx Xxxxxxxxx | |||||
| Name: Xxxxxxxxx Xxxxxxxxx | ||||||
| Title: Assistant Vice President | ||||||
| DZ BANK AG DEUTSCHE ZENTRAL- | ||||||
| GENOSSENSCHAFTSBANK, | ||||||
| as Administrative Agent and Liquidity Agent | ||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| By: | /s/ Xxxxxxxxx Xxxxxxxxx | |||||
| Name: Xxxxxxxxx Xxxxxxxxx | ||||||
| Title: Assistant Vice President | ||||||
| U.S. BANK NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxx Xxxxxxxxx | |||||
| Name: Xxxx Xxxxxxxxx | ||||||
| Title: Vice President | ||||||
December 21, 2007
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: Fifteenth 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 Fifteenth
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 |
||||
| 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,
As its attorney-in-fact
AUTOBAHN FUNDING COMPANY LLC
By: DZ Bank AG Deutsche Zentral-Genossenschaftsbank,
As its attorney-in-fact
By: |
/s/ Xxxxxxx Xxxxxxx | |||
| Name: Xxxxxxx Xxxxxxx | ||||
| Title: Vice President | ||||
By: |
/s/ Xxxxxxxxx Xxxxxxxxx | |||
| Name: Xxxxxxxxx Xxxxxxxxx | ||||
| Title: Assistant Vice President | ||||
| GSS HOLDINGS, INC. | ||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||
| Title: Vice President | ||||
