EXHIBIT 10.10 (C)
NINTH AMENDMENT TO LOAN AND SERVICING AGREEMENT
THIS NINTH AMENDMENT TO LOAN AND SERVICING AGREEMENT, dated as of March
30, 2005 (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 by a First Amendment to Loan
and Servicing Agreement, dated as of March 16, 2001, an Omnibus Amendment, dated
as of March 16, 2001, a Second Amendment to Loan and Servicing Agreement, dated
as of November 5, 2001, a Third Amendment to Loan and Servicing Agreement, dated
as of April 23, 2002, a Fourth Amendment to Loan and Servicing Agreement, dated
as of July 22, 2002, a Fifth Amendment to Loan and Servicing Agreement, dated as
of April 23, 2003, a Sixth Amendment to Loan and Servicing Agreement, dated as
of May 28, 2003, a Seventh Amendment to Loan and Servicing Agreement, dated as
of July 21, 2004 and an Eighth Amendment to Loan and Servicing Agreement, dated
as of November 19, 2004, the "Agreement"); and
B. 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 Agreement shall be amended as follows:
2.1 Appendix A to the Agreement is hereby amended to amend
clause (ix) of the definition of "Servicer Event of Default" to read
as follows:
"(ix) The Tangible Net Worth of TRM shall at any time be less
than the sum of (a) $57,500,000, (b) an amount equal to 50% of the
positive consolidated net income of TRM and its Subsidiaries for
each fiscal quarter of TRM ending after December 31, 2004, and (c)
an amount equal to 75% of any subordinated debt or equity of TRM
issued or incurred after December 31, 2004."
2.2 Appendix A to the Agreement is hereby amended to add a
new definition of "Tangible Net Worth" thereto as follows:
"Tangible Net Worth" means, with respect to any Person, as of
any date of determination, the total equity of such Person as of
such date less intangibles, if any, all determined on a consolidated
basis in accordance with GAAP, provided that such determination (i)
shall include all subordinated debt as equity and (ii) shall not
include goodwill as an intangible to be deducted from equity.
3. Conditions to Effectiveness. This Amendment shall become
effective as of November 1, 2004 on the date (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
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Financial
Services Officer
TRM ATM CORPORATION
By: /s/ Xxxxxx X. X'Xxxxx
-------------------------------------
Name: Xxxxxx X. X'Xxxxx
Title: Chief Financial Officer
AUTOBAHN FUNDING COMPANY LLC
By: DZ Bank AG, Deutsche Zentral-
Genossenschaftsbank Frankfurt am
Main, as its attorney-in-fact
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
DZ BANK AG, DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK
FRANKFURT AM MAIN, as
Administrative Agent and Liquidity
Agent
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Vice President
