exv10w11






Exhibit 10.11




AMENDMENT NO. 5

TO

SECURITIES PURCHASE AGREEMENT




     THIS AMENDMENT NO. 5 TO SECURITIES PURCHASE AGREEMENT, dated as of November 5, 2008 (this
“Amendment”), to the Securities Purchase Agreement referred to below, is effective as of
November 5, 2008 (the “Fifth Amendment Effective Date”), by and among TRM CORPORATION, an
Oregon corporation (the “Issuer”), LAMPE, CONWAY & CO., LLC, as administrative agent (the
“Administrative Agent”) and LC CAPITAL MASTER FUND, LTD., as purchaser (the
“Purchaser”).



WITNESSETH:




     WHEREAS, the Issuer, Administrative Agent and the Purchaser are parties to that certain
Securities Purchase Agreement, dated as of April 18, 2008 (as amended, restated, supplemented or
otherwise modified from time to time, the “Securities Purchase Agreement”); and



     WHEREAS, the Issuer has requested, and the Administrative Agent and Required Purchasers have
agreed, to amend the Securities Purchase Agreement in the manner, and on the terms and conditions,
provided for herein.



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



     1. Defined Terms. Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Securities Purchase Agreement.



     2. Amendment to Section 1.01. Pursuant to Section 10.08 of the Securities Purchase
Agreement, as of the Fifth Amendment Effective Date, Section 1.01 of the Securities Purchase
Agreement is hereby amended by inserting the following defined terms into Section 1.01 of the
Securities Purchase Agreement in proper alphabetical order:



          “’Amendment No. 5’ means Amendment No. 5 to the Securities Purchase Agreement, dated as of
November 5, 2008 by and among the Issuer, the Purchaser party thereto and Lampe, Conway & Co., LLC,
as administrative agent, which Amendment No. 5 amends this Agreement.”




          “’ATM Vault Cash Purchase Agreement” means that certain ATM Vault Cash Purchase Agreement,
effective as of November 3, 2008, by and among U.S. Bank National Association, doing business as
Elan Financial Services, TRM Inventory Funding Trust, TRM ATM Corporation, DZ Bank AG, Deutsche
Zentral-Genossenschaftsbank Frankfurt AM Main and U.S. Bank National Association, as collateral
agent.”




 









 








          “’Elan Cash Provisioning Agreements’ means the Cash Provisioning Agreements, entered into from
time to time by and among U.S. Bank, National Association dba Elan Financial Services, TRM ATM
Corporation and various armored car carriers, in the form previously provided to the Administrative
Agent.”




          “’Elan Vault Cash Agreements’ means the ATM Vault Cash Purchase Agreement and the Elan Cash
Provisioning Agreements.”




          “’Fifth Amendment Effective Date’ has the meaning given thereto in Amendment No 5.”




     3. Amendment to Section 6.01. Pursuant to Section 10.08 of the Securities Purchase
Agreement, as of the Fifth Amendment Effective Date, Section 6.01 of the Securities Purchase
Agreement is hereby amended by inserting the following clause (k) immediately after clause (j) of
Section 6.01 of the Securities Purchase Agreement:



     “(k) Indebtedness under one or more letters of credit in aggregate face amount not to exceed
(i) $2,000,000 during the 60-day period commencing on the Fifth Amendment Effective Date and (ii)
$800,000 after the foregoing period, in either case, issued in favor of U.S. Bank, National
Association entered into in connection with the Elan Vault Cash Agreements.”



     4. Amendment to Section 6.02. Pursuant to Section 10.08 of the Securities Purchase
Agreement, as of the Fifth Amendment Effective Date, Section 6.02 of the Securities Purchase
Agreement is hereby amended by inserting the following clause (l) immediately after clause (k) of
Section 6.02 of the Securities Purchase Agreement:



     “(l) Liens on the automatic teller machines owned by the Issuer and the other Loan Parties
created under the Elan Cash Provisioning Agreements that are junior and subordinated to the Liens
created (i) under the Transaction Documents and (ii) under the Notemachine Settlement Agreement and
the Notemachine Security Agreement.”



     5. Remedies. This Amendment shall constitute a Transaction Document. The breach by
any Loan Party of any covenant or agreement in this Amendment shall constitute an immediate Event
of Default hereunder and under the other applicable Transaction Documents.



     6. Representations and Warranties. To induce Administrative Agent and Required
Purchasers to enter into this Amendment, the Issuer (and, to the extent set forth in any other
Transaction Document, each other Loan Party) hereby jointly and severally represents and warrants
that:




	 	(a)	 	The execution, delivery and performance by each Loan Party of this
Amendment and the performance of the Securities Purchase Agreement as amended by
this Amendment (the “Amended Securities Purchase Agreement”) (i) are within
such Loan Party’s corporate or similar powers and, at the time of execution
thereof, have been duly authorized by all necessary corporate and similar action
(including, if applicable, consent of the holders of its Equity




 









 






	 	 	 	Interests), (ii) do not (A) contravene such Loan Party’s Organizational Documents,
(B) violate any material applicable law in any material respect, (C) in any material
respect, conflict with, contravene, constitute a default or breach under any
material contract of any Loan Party or any of its Subsidiaries, or result in or
permit the termination or acceleration of any such material contract, or (D) result
in the imposition of any Lien (other than Liens permitted by Section 6.02 of the
Securities Purchase Agreement) upon any property of any Loan Party or any of its
Subsidiaries and (iii) do not require any action, consent or approval of,
registration or filing with or any other action by any Governmental Authority or any
consent of, or notice to, any Person.






	 	(b)	 	From and after its delivery to the Administrative Agent, this Amendment
has been duly executed and delivered to the other parties hereto by each Loan Party
party hereto and this Amendment and the Amended Securities Purchase Agreement is
the legal, valid and binding obligation of such Loan Party and is enforceable
against such Loan Party in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors’ rights generally or by general equitable principles relating
to enforceability.
	 
	 	(c)	 	No Default or Event of Default has occurred and is continuing after
giving effect to this Amendment.
	 
	 	(d)	 	No action, claim or proceeding is now pending or, to the knowledge of
any Loan Party, threatened against any Loan Party, at law, in equity or otherwise,
before any court, board, commission, agency or instrumentality of any federal,
state, or local government or of any agency or subdivision thereof, or before any
arbitrator or panel of arbitrators, which (i) challenges any Loan Party’s right,
power, or competence to enter into this Amendment or perform any of its obligations
under this Amendment, the Amended Securities Purchase Agreement or any other
Transaction Document, or the validity or enforceability of this Amendment, the
Amended Securities Purchase Agreement or any other Transaction Document or any
action taken under this Amendment, the Amended Securities Purchase Agreement or any
other Transaction Document or (ii) if determined adversely, is reasonably likely to
have or result in a Material Adverse Effect.
	 
	 	(e)	 	After giving effect to this Amendment, the representations and
warranties of the Issuer and the other Loan Parties contained in the Amended
Securities Purchase Agreement and each other Transaction Document are true and
correct in all material respects (provided, that if any representation or warranty
is by its terms qualified by concepts of materiality, such representation shall be
true and correct in all respects) on and as of Fifth Amendment Effective Date with
the same effect as if such representations and warranties had been made on and as
of such date, except that any such representation or warranty which is expressly
made only as of a specified date need be true only as of such date.




 









 











     7. No Amendment/Waivers. The Securities Purchase Agreement and the other Transaction
Documents shall continue to be in full force and effect in accordance with their respective terms
and, except as expressly provided herein, shall be unmodified. In addition, except as expressly
provided herein, this Amendment shall not be deemed an amendment, consent or waiver of any term or
condition of any Transaction Document or a forbearance by the Administrative Agent or the Purchaser
with respect to any right or remedy which the Administrative Agent or the Purchaser may now or in
the future have under the Transaction Documents, at law or in equity or otherwise or be deemed to
prejudice any rights or remedies which the Administrative Agent or the Purchaser may now have or
may have in the future under or in connection with any Transaction Document or under or in
connection with any Default or Event of Default which may now exist or which may occur after the
date hereof.



     8. Expenses. Each of the Issuer and each other Loan Party hereby reconfirms its
respective obligations pursuant to Section 10.05 of the Securities Purchase Agreement and to pay
and reimburse the Administrative Agent, for all reasonable costs and expenses (including, without
limitation, reasonable fees of one legal counsel) incurred in connection with the negotiation,
preparation, execution and delivery of this Amendment and all other documents and instruments
delivered in connection herewith.



     9. Affirmation of Existing Transaction Documents. After giving effect to this
Amendment, each Loan Party (a) confirms and agrees that its obligations under each of the
Transaction Documents to which it is a party shall continue without any diminution thereof and
shall remain in full force and effect on and after the date hereof, and (b) confirms and agrees
that the Liens granted pursuant to the Collateral documents to which it is a party shall continue
without any diminution thereof and shall remain in full force and effect on and after the date
hereof.



     10. Effectiveness. This Amendment shall become effective as of the Fifth Amendment
Effective Date only upon satisfaction in full in the judgment of the Administrative Agent of each
of the following conditions:




	 	(a)	 	Amendment. The Administrative Agent shall have received
two (2) copies of this Amendment duly executed and delivered by the
Administrative Agent, the Required Purchasers and the Issuer.
	 
	 	(b)	 	Payment of Fees and Expenses. The Issuer shall have
paid all costs, fees and expenses owing in connection with this Amendment and
the other Transaction Documents and due to the Administrative Agent (including,
without limitation, reasonable legal fees and expenses of one legal counsel).





     11. Governing Law. This Amendment shall be construed in accordance with and governed
by the laws of the State of New York.



 









 





     12. Counterparts. This Amendment may be executed by the parties hereto on any number
of separate counterparts and all of said counterparts taken together shall be deemed to constitute
one and the same instrument.



[SIGNATURES APPEAR ON THE FOLLOWING PAGE]




 









 








     IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.



	 	 	 	 	 
	 	TRM CORPORATION, as the Issuer

 	 
	 	By:  	/s/ Richard Stern
 	 
	 	 	Name:  	Richard Stern 	 
	 	 	Title:  	President & CEO 	 
	 
	 	LAMPE, CONWAY & CO., LLC, as

Administrative Agent

 	 
	 	By:  	/s/ Richard F. Conway
 	 
	 	 	Name:  	Richard F. Conway 	 
	 	 	Title:  	Managing Member 	 
	 
	 	LC CAPITAL MASTER FUND, LTD.,

as Purchaser

 	 
	 	By:  	/s/ Richard F. Conway
 	 
	 	 	Name:  	Richard F. Conway 	 
	 	 	Title:  	Director