exv10w8xay



 






Exhibit 10.8(a)




FIRST AMENDMENT AND WAIVER

TO CREDIT AGREEMENT




THIS FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT, dated as of November 14, 2005 (this
“Amendment”), is entered into among TRM Corporation and TRM (ATM) Limited (collectively,
the “Borrowers”), the Guarantors, the Lenders party hereto and Bank of America, N.A., as
Administrative Agent (in such capacity, the “Administrative Agent”). Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed thereto in the Credit
Agreement (as defined below).



RECITALS




A. The Borrowers, the Guarantors, the Lenders and the Administrative Agent entered into that
certain Credit Agreement dated as of November 19, 2004 (as amended, modified, extended, renewed or
replaced from time to time, the “Credit Agreement”).



B. The Loan Parties have informed the Lenders that (i) they will not be compliance with
Section 8.11(b) of the Credit Agreement (Consolidated Leverage Ratio) for the September 30, 2005
reporting period, (ii) they will not be compliance with Section 8.11(c) of the Credit Agreement
(Consolidated Fixed Charge Coverage Ratio) for the September 30, 2005 reporting period and (iii)
year-to-date Consolidated Capital Expenditures exceed $12,500,000 in violation of Section 8.15 of
the Credit Agreement (Capital Expenditures) (collectively items (i), (ii) and (iii) are referred to
herein as the “Acknowledged Defaults”).



C. The Loan Parties have requested that the Required Lenders (i) waive the Acknowledged
Defaults and (ii) amend certain provisions of the Credit Agreement.



D. The Required Lenders have agreed to (i) waive the Acknowledged Defaults and (ii) amend the
Credit Agreement subject to the conditions and the terms set forth below.



AGREEMENT




1. Waiver. By their execution below and in reliance on the representations and
warranties of the Loan Parties set forth herein, the Required Lenders hereby waive the Acknowledged
Defaults and agree that the Lenders shall have no rights and remedies with respect thereto.


This waiver is a one-time waiver and shall not be construed to be (a) a waiver as to future
compliance with Sections 8.11(b), 8.11(c) or 8.15 of the Credit Agreement, including, without
limitation, for the remainder of fiscal year 2005, or any other covenant in the Credit Agreement or
(b) a waiver of any other Default that may exist. This waiver shall not be deemed to be a
modification or amendment to the Credit Agreement, and the Credit
Agreement is hereby ratified


 









 





and confirmed in all respects and shall remain in full force and effect in accordance with its
terms.




2. Amendments.



(a) Section 1.01:
The following definitions appearing in Section 1.01 of the Credit Agreement are amended to read as follows:



“Consolidated EBITDA” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for
such period plus the following to the extent deducted in calculating such
Consolidated Net Income: (a) Consolidated Interest Charges for such period, (b) the
provision for federal, state, local and foreign income taxes payable by the Company
and its Subsidiaries for such period, (c) the amount of depreciation and
amortization expense for such period, (d) non-cash expenses (excluding any non-cash
expenses representing an accrual of or reserve for cash expenses in any future
period), (e) one-time cash expenses incurred in connection with the closing of this
Credit Agreement and the consummation of the Acquisition of the Acquired Business so
long as such expenses are reasonably documented, recognized prior to March 31, 2005
and do not exceed $1,000,000 in the aggregate and (f) any “break-up” or similar fee
paid by the Company during such period as a result of the Company’s termination of
its agreement to acquire the ATM Business of Travelex UK Limited and the Equity
Interests of Travelex ATMs Limited, in an aggregate amount not to exceed £1,500,000,
all as determined in accordance with GAAP.



“Debt Issuance” means the issuance by the Company or any Subsidiary of
(a) any Indebtedness that is permitted by Section 8.03(g) and (b) any other
Indebtedness that is not permitted by Section 8.03 or is not otherwise
approved by the Required Lenders.



“Permitted Acquisitions” means Investments consisting of an Acquisition
by a Loan Party, provided that (i) the Property acquired (or the Property of
the Person acquired) in such Acquisition is used or useful in the same or a similar
line of business as the Company and its Subsidiaries were engaged in on the Closing
Date (or any reasonable extensions or expansions thereof), (ii) in the case of an
Acquisition of the Equity Interests of another Person, the board of directors (or
other comparable governing body) of such other Person shall have duly approved such
Acquisition, (iii) the Company shall have delivered to the Administrative Agent a
Pro Forma Compliance Certificate demonstrating that, upon giving effect to such
Acquisition on a Pro Forma Basis, the Loan Parties would be in compliance with the
financial covenants set forth in Section 8.11 as of the most recent fiscal
quarter for which the Company was required to deliver financial statements pursuant
to Section 7.01(a) or (b), (iv) the representations and warranties
made by the Loan Parties in each Loan Document shall be true and correct in all
material respects at and as if made as of the date of such Acquisition (after giving
effect thereto) except



2








 






to the extent such representations and warranties expressly relate to an
earlier date, (v) immediately after giving effect to such Acquisition, there shall
be at least $10,000,000 of aggregate availability existing under the Aggregate
Revolving Commitments and the Aggregate Alternative Currency Commitments, and (vi)
the aggregate consideration (including cash and non-cash consideration (other than
consideration consisting of Equity Interests of the Company), any assumption of
Indebtedness, deferred purchase price and any earn-out payments) paid by the Company
or any Subsidiary for all such Acquisitions occurring during any twelve month period
shall not exceed $15,000,000.



(b) Section 2.05(a)(i): Section 2.05(a)(i) of the Credit Agreement is amended
to read as follows:



(i) Revolving Loans, Term Loans and Foreign Loans. Each Borrower may,
upon notice from such Borrower to the Administrative Agent, at any time or from time
to time voluntarily prepay Revolving Loans, Foreign Loans and the Term Loan in whole
or in part without penalty; provided that (A) such notice must be received
by the Administrative Agent not later than 11:00 a.m. (1) three Business Days prior
to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (2)
four Business Days prior to any date of prepayment of Foreign Loans and (3) on the
date of prepayment of Base Rate Loans; (B) any such prepayment of Eurocurrency Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof (or, if less, the entire principal amount thereof then outstanding);
(C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or
a whole multiple of $100,000 in excess thereof (or, if less, the entire principal
amount thereof then outstanding); (D) any prepayment of the Term Loan shall be
applied ratably to the remaining principal amortization payments; and (E) any
prepayment of the Term Loan that occurs prior to the second anniversary of the
Closing Date shall be subject to an additional premium equal to the amount of such
prepayment multiplied by 1.0%. Each such notice shall specify the date and amount
of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate
Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative
Agent will promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender’s Applicable Percentage of such prepayment. If such
notice is given by a Borrower, such Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied
by all accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section 3.05. Each such prepayment shall be applied to
the Loans of the Lenders in accordance with their respective Applicable Percentages.



(c) Section 8.03: The word “and” appearing the end of clause (f) of Section
8.03 of the Credit Agreement is deleted, clause (g) of Section 8.03 of the Credit Agreement
is amended to read as follows, and a new clause (h) is added to Section 8.03 of the Credit
Agreement to read as follows:



3








 




(g) unsecured subordinated (on customary market terms) Indebtedness of the
Company in aggregate principal amount not less than the outstanding principal amount
of the Term Loan but not greater than $150,000,000; and



(h) Guarantees with respect to Indebtedness permitted under clauses (a) through
(g) of this Section 8.03.



(d) Section 8.11(c): Section 8.11(c) of the Credit Agreement is amended to
read as follows:



(c) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the Company set
forth below to be less than the ratio corresponding to such fiscal quarter:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Calendar Year	 	 	March 31	 	 	June 30	 	 	September 30	 	 	December 31	 
	 	2005

	 	 	n/a
	 	 	n/a
	 	 	n/a
	 	 	1.00 to 1.0	 
	 	2006

	 	 	1.10 to 1.0
	 	 	1.10 to 1.0
	 	 	1.10 to 1.0
	 	 	1.15 to 1.0	 
	 	2007

	 	 	1.15 to 1.0
	 	 	1.15 to 1.0
	 	 	1.15 to 1.0
	 	 	1.20 to 1.0	 
	 	thereafter

	 	 	1.20 to 1.0
	 	 	1.20 to 1.0
	 	 	1.20 to 1.0
	 	 	1.20 to 1.0	 
	 





(e) Section 8.15: Section 8.15 is amended to read as follows:



Permit Consolidated Capital Expenditures for (a) fiscal year 2005 to exceed $17,000,000
and (b) for each fiscal year thereafter to exceed $15,000,000.



3. Effectiveness; Conditions Precedent. This Amendment shall be effective as of
November 14, 2005 when all of the conditions set forth in this Section 3 shall have been satisfied
in form and substance satisfactory to the Administrative Agent.



(a) Execution and Delivery of Amendment. The Administrative Agent shall have
received copies of this Amendment duly executed by the Borrowers, the Guarantors, the
Required Lenders and the Administrative Agent.



(b) Prepayment of Term Loan. The Company shall prepay the Term Loan in manner
provided in Section 2.05(b)(vii)(C) of the Credit Agreement in amount equal to 75% of the
Net Cash Proceeds received by the Company from the issuance of 2,778,375 shares of its
common Equity Interests on or about October 5, 2005 (which generated gross cash proceeds of
approximately $40,500,000).



(c) Amendment Fee. The Administrative Agent shall have received an amendment
fee, for the account of each Lender executing this Amendment on or prior to 12:00 Noon
(EST), Monday, November 14, 2005, in an amount equal to 0.375% of the sum of (i) such
Lender’s pro rata share of the Aggregate Revolving Commitments and (ii)



4








 








such Lender’s pro rata share of the then outstanding Term Loan (calculated prior to
giving effect to this Amendment).



(d) Fees and Expenses. Payment by the Borrowers of all fees due and payable in
connection with the Amendment and all reasonable expenses (including reasonable attorney
fees) owed by the Borrowers to the Administrative Agent and BAS.



4. Ratification of Credit Agreement. The Loan Parties acknowledge and consent to the
terms set forth herein and agree that this Amendment does not impair, reduce or limit any of its
obligations under the Loan Documents.



5. Authority/Enforceability. Each of the Loan Parties represents and warrants as
follows:



(a) It has taken all necessary action to authorize the execution, delivery and
performance of this Amendment.



(b) This Amendment has been duly executed and delivered by such Person and constitutes
such Person’s legal, valid and binding obligation, enforceable in accordance with its terms,
except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights
generally and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding at law or in equity).



(c) No consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is required in
connection with the execution, delivery or performance by such Person of this Amendment.



(d) The execution and delivery of this Amendment does not (i) violate, contravene or
conflict with any provision of its Organization Documents or (ii) materially violate,
contravene or conflict with any Laws applicable to it or any of its Subsidiaries.



6. Representations and Warranties of the Loan Parties. The Loan Parties represent and
warrant to the Lenders that (a) the representations and warranties of the Loan Parties set forth in
Article VI of the Credit Agreement are true and correct as of the date hereof, and (b) after giving
effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an
Event of Default.



7. Release. In consideration of the Required Lenders entering into this Amendment,
the Loan Parties hereby release the Administrative Agent, the Lenders and the Administrative
Agent’s and the Lenders’ respective officers, employees, representatives, agents, counsel and
directors from any and all actions, causes of action, claims, demands, damages and liabilities of
whatever kind or nature, in law or in equity, now known or unknown, suspected or unsuspected to the
extent that any of the foregoing arises from any action or failure to act solely in connection with
the Loan Documents on or prior to the date hereof.



5









 




8. Counterparts/Telecopy. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. Delivery of executed counterparts of this Amendment
by telecopy shall be effective as an original.



9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.



[remainder of page intentionally left blank]




6









 



     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.



	 	 	 	 	 
	BORROWERS: 	TRM CORPORATION,

an Oregon corporation

 	 
	 	By:  	/s/
Daniel E. O’Brien
 	 
	 	 	Name:  	Daniel E. O’Brien	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	TRM (ATM) LIMITED,

a company incorporated in England and Wales

 	 
	 	By:  	/s/ Daniel E. O’Brien
 	 
	 	 	Name:  	Daniel E. O’Brien	 
	 	 	Title:  	Director	 
	 
	DOMESTIC

GUARANTORS:	
TRM ATM CORPORATION

an Oregon corporation	 
	 

	 	By:  	/s/ Daniel E. O’Brien
 	 
	 	 	Name:  	Daniel E. O’Brien	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	TRM COPY CENTERS (USA) CORPORATION,

an Oregon corporation

 	 
	 	By:  	/s/
Daniel E. O’Brien
 	 
	 	 	Name:  	Daniel E. O’Brien	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	ACCESS CASH INTERNATIONAL L.L.C.,

a Delaware limited liability company

 	 
	 	By:  	TRM ATM Corporation, its sole member
 	 
	 
	 	By:  	/s/
Daniel E. O’Brien
 	 
	 	 	Name:  	Daniel E. O’Brien	 
	 	 	Title:  	Chief Financial Officer	 



7









 






	 	 	 	 	 
	FOREIGN

GUARANTORS:	
TRM COPY CENTRES (U.K.) LIMITED

a company incorporated in England and Wales	 
	 
	 	By:  	/s/ Daniel E. O’Brien
 	 
	 	 	Name:  	Daniel E. O’Brien	 
	 	 	Title:  	Director	 
	 
	 	INKAS FINANCIAL CORP. LTD,

a company incorporated in England and Wales

 	 
	 	By:  	/s/ Daniel E. O’Brien
 	 
	 	 	Name:  	Daniel E. O’Brien	 
	 	 	Title:  	Director	 
	 
	 	TRM (CANADA) CORPORATION

a Canada corporation

 	 
	 	By:  	/s/ Daniel E. O’Brien
 	 
	 	 	Name:  	Daniel E. O’Brien	 
	 	 	Title:  	Director	 



8









 





	 	 	 	 	 
	ADMINISTRATIVE

AGENT:	
BANK OF AMERICA, N.A.,

as Administrative Agent
	 
	 	By:  	/s/
Dora Brown
 	 
	 	 	Name:  	Dora Brown	 
	 	 	Title:  	Vice President	 



9








 





	 	 	 	 	 



	 	 	 	 	 
	LENDERS: 	BANK OF AMERICA, N.A.,

as a Lender, L/C Issuer and Swing Line Lender

 	 
	 	By:  	/s/
Eric Eidler
 	 
	 	 	Name:  	Eric Eidler	 
	 	 	Title:  	Senior Vice President	 



10









 







The undersigned consents to the terms of this Amendment as set forth above.






	 	 	 	 	 
	 	  [Name of Institution]
	 
	By:  	 
	Name:  	 
	Title:  	 




11