exv10w8xfy



 





Exhibit 10.8(f)




SEVENTH AMENDMENT TO LOAN AND SERVICING AGREEMENT




     THIS SEVENTH AMENDMENT TO LOAN AND SERVICING AGREEMENT, dated as of July 21, 2004 (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. The 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, and a Sixth
Amendment to Loan and Servicing Agreement, dated as of May 28,
2003, 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 July 21, 2004, the Agreement shall be
amended as follows:




          2.1 Amendment to Section 1.05. Section 1.05 of the Agreement is hereby amended by
deleting the first paragraph thereof in its entirety and replacing it with the following:





     The Borrower covenants and agrees to use all proceeds of the Loans and sale of
the Certificates solely to provide Cash to TRM ATM for use by TRM ATM in the ATMs.
TRM ATM hereby covenants and agrees that the Borrower shall be the sole and
exclusive source of cash for automated teller machines owned, leased or managed by
TRM ATM in the United States of America and until the Final Payout Date hereunder it
will not permit cash from any other cash provider to be placed in such automated
teller machines (including all ATMs); provided that (i) the Borrower shall
not be the cash provider for Rejected ATMs, and any Person may permit cash from
other cash providers to be placed in Rejected ATMs and (ii) the Borrower shall not
be the cash provider for Excepted ATMs and Existing Cash Providers may provide cash
for use with respect to the applicable Excepted ATMs. In no event shall any Cash be
placed in any Rejected



 









 






ATM or any Excepted ATM. TRM ATM hereby appoints the Borrower as its cash provider
for all automated teller machines owned, leased or managed by TRM ATM in the United
States of America (other than Rejected ATMs and Excepted ATMs), and the Borrower
hereby accepts such appointment. At no time shall any funds from other cash
providers be placed in any ATM or the ATM Fee Settlement Account, the Credit Balance
Settlement Account, any Disbursement Account, any account created pursuant to
Section 3.04 or any other account created in connection herewith.



          2.2 Amendment to Section 1.06. Section 1.06 of the Agreement is hereby amended by
deleting the first paragraph thereof in its entirety and replacing it with the following:





     In consideration for the Borrower agreeing to provide Cash to TRM ATM for use
in the ATMs owned, leased or managed by TRM ATM, TRM ATM agrees to pay to the
Borrower in arrears on each Cash Provision Fee Payment Date the Cash Provision Fee
which shall have accrued through such date. TRM ATM covenants and agrees that it
shall cause all ATM Fees to be deposited by the applicable Processing Agent directly
into the ATM Fee Settlement Account.



          2.3 Amendments to Appendix A. (a) The definitions of “ATM” and “Borrowing
Base” contained in Appendix A of the Agreement are hereby deleted in their entirety and
replaced with the following:





     “ATM” means an automated teller machine owned, leased or managed by TRM ATM
which (i) is accessible only to the applicable Transportation Agent; (ii) is
connected to a Network and a Processing Agent by means of a Switch; (iii) is insured
with respect to losses resulting from malfunction, theft, fraud, fire, and other
customary events by a reputable insurance company with a claims paying rating of at
least “A” by Standard & Poor’s and “A2” by Moody’s, the proceeds of which are
payable to the Collateral Agent; (iv) is located in the United States of America;
(v) is, in the case of all automated teller machines managed but not owned or leased
by TRM ATM, the subject of an executed Owner Agreement, a copy of which has been
delivered to the Administrative Agent and the Liquidity Agent, and (vi) has been
approved in writing by the Liquidity Agent; provided, that (a) any automated
teller machines that otherwise qualify as ATMs hereunder on April 23, 2002, shall be
deemed to have been so approved by the Liquidity Agent and (b) any ATM located on
the property of (or in the facilities operated by) a Person on whose property (or in
whose facilities) less than 15% of the total number of ATMs are located shall not
need to be so approved; and provided, further, that the term “ATM”
shall not include (a) any Excepted ATM, or (b) any automated teller machine
acquired, placed, leased or managed by TRM ATM after April 23, 2002 (or that did not
otherwise qualify as an ATM hereunder on such date), if any of the following are
true with respect to such automated teller machine (each, a “Proposed ATM”):
(w) Lender (or Administrative Agent on behalf of Lender), following notice from TRM
ATM to the Lender and the Administrative Agent of its acquisition, placement,
leasing or management (or proposed acquisition, placement, leasing or management) of
such automated teller machine, shall have provided TRM ATM notice in writing that it



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does not desire to be the sole and exclusive source of cash for such Proposed ATM;
(x) in the case of Proposed ATMs that are subject to the agreement with Exxon
Company U.S.A. referenced in Section 7.04(h), such agreement shall not have been
amended on terms satisfactory to the Administrative Agent and the Liquidity Agent;
or (y) the Proposed ATM is a test or temporary placement on the property of a third
Person into which no Cash is to be placed (each such automated teller machine
described in clause (w), (x) or (y) above, a “Rejected ATM”).




     “Borrowing Base” means (A) the sum of (i) all Cash stored in the ATMs,
(ii) all Cash held by Depository Banks awaiting distribution to Transportation
Agents, (iii) all Cash held by Transportation Agents, (iv) all credit balances with
respect to the Cash owed from settlement banks which are members of the Networks,
and (v) all Cash in the Credit Balance Settlement Account, minus (B) the sum of all
Ineligible Assets, minus (C) the sum of all Excess Concentrations.



     (b) Appendix A of the Agreement is hereby amended by adding thereto, in the appropriate
alphabetical locations, the following new definitions:




     “Excepted ATM” means any automated teller machine that is acquired by
TRM ATM and that is, at the time of such acquisition, subject to an existing written
contract pursuant to which a Person other than the Borrower provides cash for use
with respect to such automated teller machine; provided that such automated
teller machine shall constitute an “Excepted ATM” only until the earlier of (i) the
date such contract is, for whatever reason, terminated and (ii) the scheduled
maturity of such contract as of the date that TRM ATM acquired such ATM (i.e.,
without respect to any extension thereto, whether with or without the consent of TRM
ATM).




     “Excess Concentrations” means, at any time, the sum of (a) the
aggregate of all Cash in excess of $80,000 stored in any single ATM, unless such ATM
is in a location where security or other personnel are employed to monitor such ATM
24 hours a day, in which case only Cash stored in any such ATM in excess of $160,000
shall be considered an “Excess Concentration,” (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 in facilities owned or
operated (directly or indirectly) by the same retailer (other than 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 25% level, (c)
in the event that more than 75% 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 75% level, (d) 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, (e) 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



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ATMs and (ii) the number of such ATMs in excess of such 2% level, and (f) 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.




     “Existing Cash Provider” means each Person that provides cash for use
with respect to Excepted ATMs pursuant to any written contract in effect on the
date TRM ATM acquired such Excepted ATM.




     “Ineligible Assets” means, at any time: (a) any ATM Fees, (b) any Cash
stored in ATMs located outside of the United States or any Cash otherwise located
outside of the United States, (c) any Cash in the possession of any Person with
regard to which an Event of Bankruptcy has occurred, (d) any Cash stored in an ATM
that is located on the property of a Person with regard to which an Event of
Bankruptcy has occurred, (e) any Cash with respect to which the Borrower is not the
sole and exclusive source thereof under this Agreement, (f) any Cash, if any, stored
in any ATM in which any cash from any cash provider other than the Borrower is
stored and (g) any credit balances with respect to the Cash owed from settlement
banks that are more than two (2) days past due.




     “Owner Agreement” means an agreement among TRM ATM and the owner of an
automated teller machine managed by TRM ATM, and acknowledged and agreed to by the
Collateral Agent and Borrower, which agreement shall be substantially in the form of
Schedule III hereto or such other form as may be agreed to by the Borrower,
the Servicer, the Lender, the Administrative Agent, the Liquidity Agent and the
Collateral Agent.




     “Pantry Entities” means the retail stores operating under the name “The
Pantry,” together with the owners and operators thereof.



          2.4 Amendment to Schedules. (a) Schedule II attached to the Agreement is hereby
deleted in its entirely and replaced with the Schedule II attached hereto.




          (b) The Agreement is hereby amended by adding the Schedule III attached hereto as a new
Schedule III thereto.




          2.5 Amendment to Exhibit 8.03(i). The form of servicing report that is attached to the
Agreement as Exhibit 8.03(i) is hereby deleted in its entirety and replaced with the form
of servicing report that is attached hereto as Exhibit 8.03(i).




          3. Conditions to Effectiveness. This Amendment shall become effective, as of July 21,
2004, upon receipt by the Administrative Agent of 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





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“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.



[Remainder of page intentionally left blank.]




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     IN WITNESS WHEREOF, the parties have caused this Amendment to he 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/ W. Thomas Morris, II	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: W. Thomas Morris, II	 	 
	 

	 	 	 	Title: Senior Financial Services Officer	 	 
	 
	 	 	 	 	 	 
	 	 	TRM ATM CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel E. O’Brien	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Daniel E. O’Brien	 	 
	 

	 	 	 	Title: Senior Vice President, Financial Services	 	 
	 
	 	 	 	 	 	 
	 	 	AUTOBAHN FUNDING COMPANY LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DZ Bank AG, Deutsche Zentral
Genossenschaftsbank Frankfurt am Main, as its
attorney- in- fact	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dominick Ruggiero	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Dominick Ruggiero	 	 
	 

	 	 	 	Title: VP	 	 
	 
	 	 	 	 	 	 
	 	 	DZ BANK AG, DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
FRANKFURT AM MAIN, as Administrative Agent and
Liquidity Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Patrick Preece	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Patrick Preece	 	 
	 

	 	 	 	Title: VP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dominick Ruggiero	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Dominick Ruggiero	 	 
	 

	 	 	 	Title: VP	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Toby Robillard	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Toby Robillard	 	 
	 

	 	 	 	Title: Assistant Vice President	 	 






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	 	Acknowledged and Agreed:


GSS HOLDINGS, INC.

 	 
	 	By:  	/s/ Andrew L. Stidd
 	 
	 	 	Name:  	Andrew L. Stidd 	 
	 	 	Title:  	President 	 
	 




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Schedule List (1)




Schedule II Insurance Requirements




Schedule III Owner Agreement




Exhibit 8.03(i) Form of Servicing Report






 




			
	(1)	 	Pursuant to Regulation S-K Item 601(b)(2),
the Company agrees to furnish supplementally a copy of any omitted schedule to
the Securities and Exchange Commission upon request.