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).
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.
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.
(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
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