Exhibit 10.2
EXECUTION DRAFT
AMENDED AND RESTATED SECOND LIEN LOAN AGREEMENT
Dated as of November 20, 2006
among
TRM CORPORATION,
TRM ATM CORPORATION,
and
TRM COPY CENTERS (USA) CORPORATION,
as Borrowers
THE SUBSIDIARIES OF THE BORROWERS IDENTIFIED HEREIN,
as the Guarantors,
WELLS FARGO FOOTHILL, INC.
as Administrative Agent,
and
THE OTHER LENDERS PARTY HERETO
TABLE OF CONTENTS
To Come
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SCHEDULES
1-A Approved EBITDA Add Backs
2.01 Commitments and Applicable Percentages
6.10 Insurance
6.13 Subsidiaries
6.15 Material Contracts
6.17 IP Rights
6.20(a) Locations of Real Property
6.20(b) Locations of Tangible Personal Property
6.20(c) Location of Chief Executive Office, Etc.
6.20(d) Changes in Legal Name, State of Formation and Structure
8.01 Liens Existing on the Closing Date
8.02 Investments Existing on the Closing Date
8.03 Indebtedness Existing on the Closing Date
11.02 Certain Addresses for Notices
EXHIBITS
A Form of Warrant
B Form of Registration Rights Agreement
2.11(a) Form of Note
7.02 Form of Compliance Certificate
7.12 Form of Joinder Agreement
11.06 Form of Assignment and Assumption
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AMENDED AND RESTATED
SECOND LIEN LOAN AGREEMENT
This AMENDED AND RESTATED SECOND LIEN LOAN AGREEMENT is entered into as of
November 20, 2006 by and among TRM CORPORATION, an Oregon corporation ("TRM"),
TRM ATM CORPORATION, an Oregon corporation ("TRM ATM"), TRM COPY CENTERS (USA)
CORPORATION, an Oregon corporation ("TRM CC"; together with TRM and TRM ATM, and
as more precisely defined below, the "Borrowers"), the Guarantors (defined
herein), GSO ORIGINATION FUNDING PARTNERS LP, a Delaware limited partnership
(the "GSO Fund"), the other Lenders (defined herein) and WELLS FARGO FOOTHILL,
INC., a California corporation, (individually "WFF"), as Administrative Agent.
Borrowers, Administrative Agent and Lenders are parties to a certain Second
Lien Loan Agreement dated as of June 6, 2006 (as amended and as in effect
immediately before the effectiveness of this Agreement, the "Existing Loan
Agreement"), pursuant to which the Lenders thereunder made available to
Borrowers a certain term loan in the aggregate original amount of $40,000,000,
subject to and in accordance with the terms, conditions and provisions set forth
therein.
Events of Default have occurred and are continuing under the Existing Loan
Agreement (the "Existing Events of Default") due to the failure of Borrowers to
comply with the financial performance covenants set forth in Sections 8.11(a)
and 8.11(b) thereof for the measurement period ended September 30, 2006.
Corresponding events of default have occurred and are continuing and under the
First Lien Loan Documents and under the UK Loan Documents (each as defined in
the Existing Loan Agreement).
Concurrently herewith, Borrowers are entering into a certain First
Amendment to Credit Agreement and a certain [Amendment to UK Docs], each of even
date herewith and pursuant to which, among other things, the lenders thereunder
modify the interest rates at which such obligations accrue, modify the
maturities of the obligations thereunder, reset certain financial performance
covenants and waive the events of default arising thereunder in connection with
the events giving rise to the Existing Events of Default.
The parties desire to amend and restate the Existing Loan Agreement in its
entirety, upon the terms and conditions set forth herein, and to thereby effect
a restructuring the Term Loan (as defined in the Existing Loan Agreement) and
the Loan Documents.
In connection with amending and restating the Existing Loan Agreement and
in order to induce the Lenders to consent to and waive the Existing Events of
Default, the Term B Lenders (as defined below), severally, and not jointly, wish
to acquire from TRM and TRM wishes to issue to the Term B Lenders, upon the
terms and conditions stated in this Agreement, warrants, substantially in the
form attached as Exhibit A, to acquire that number of shares of the TRM's common
stock, no par value per share (the "Common Stock"), equal to 3,072,074 (such
warrants, together with any warrants or other securities issued in exchange or
substitution therefor or replacement thereof, and as any of the same may be
amended, restated, supplemented or otherwise modified and in effect from time to
time being referred to as the "Warrants"; the shares of Common Stock issuable
upon exercise of the Warrants being referred to as the "Warrant Shares").
Contemporaneously with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement,
substantially in the form attached as Exhibit B (the "Registration Rights
Agreement"), pursuant to which TRM has agreed to provide certain registration
rights under the Securities Act of 1933, as amended (the "1933 Act") and the
rules and regulations promulgated thereunder, and applicable state securities
laws.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto hereby amend and restate the Existing Loan Agreement in its
entirety, without effecting a novation of the Obligations existing thereunder,
and otherwise agree as set forth below.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Acquisition", by any Person, means the acquisition by such Person, in a
single transaction or in a series of related transactions, of (i) all or any
substantial portion of the Property of another Person, (ii) assets of another
Person that constitute a division or business unit or (iii) at least a majority
of the Voting Stock of another Person, in each case whether or not involving a
merger or consolidation with such other Person and whether for cash, property,
services, assumption of Indebtedness, securities or otherwise.
"Administrative Agent" means WFF in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.
"Administrative Agent's Account" means the Deposit Account of
Administrative Agent identified on Schedule 1.01-A.
"Administrative Agent's Office" means, with respect to any currency, the
Administrative Agent's address and, as appropriate, account as set forth on
Schedule 11.02, with respect to such currency, or such other address or account
with respect to such currency as the Administrative Agent may from time to time
notify to Borrower Representative and the Lenders.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreement" means this Amended and Restated Second Lien Loan Agreement.
"Applicable Margin" means (i) with respect to Term A Loans, nine percent
(9.00%), and (ii) with respect to Term B Loans, twelve percent (12.0%).
"Applicable Percentage" means with respect to any Lender at any time, (a)
with respect to such Lender's portion of the applicable outstanding Term Loan at
any time, the percentage (carried out to the ninth decimal place) of the
outstanding principal amount of such Term Loan held by such Lender at such time
and (b) with respect to all other matters as to a particular Lender, the
percentage obtained by dividing (i) such Lender's outstanding principal amount
of such Lender's portion of the applicable Term Loan, by (ii) the aggregate
amount of the outstanding principal amount of such Term Loan. The initial
Applicable Percentage of each Lender is set forth opposite the name of such
Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto, as applicable.
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"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 11.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit 11.06 or any other form approved by
the Administrative Agent (including, in the case of the initial assignments of
portions of Term Loan by the GSO Fund, one or more master assignment and
assumption agreements to effect assignments to multiple assignees substantially
on the terms of the form of Assignment and Assumption set forth in Exhibit
11.06).
"ATM" means an automated teller machine or cash dispensing machine and
shall include all "ATM"s as defined in the US Vault Cash Agreement and "ABM"s as
defined in the CAN Vault Cash Agreement.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease, the capitalized amount of the remaining
lease payments under the relevant lease that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease, and (c) in respect of any Securitization
Transaction of any Person, the outstanding principal amount of such financing,
after taking into account reserve accounts and making appropriate adjustments,
determined by the Administrative Agent in its reasonable judgment.
"Audited Financial Statements" means the audited consolidated balance sheet
of TRM and its Subsidiaries (including, without limitation, the UK Loan Parties)
for the fiscal year ended December 31, 2005, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
fiscal year of TRM and its Subsidiaries, including the notes thereto.
"Authorized Person" means any of the chief executive officer, chief
financial officer or treasurer of Borrower Representative.
"Base Rate" means, the rate of interest announced, from time to time,
within Wells Fargo at its principal office in San Francisco as its "prime rate",
with the understanding that the "prime rate" is one of Wells Fargo's base rates
(not necessarily the lowest of such rates) and serves as the basis upon which
effective rates of interest are calculated for those loans making reference
thereto and is evidenced by the recording thereof after its announcement in such
internal publications as Wells Fargo may designate.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
All Base Rate Loans shall be denominated in Dollars.
"Borrower Representative" is defined in Section 2.14 hereof.
"Borrowers" means TRM, TRM ATM and TRM CC, on a joint and several basis,
and "Borrower" means any one of them.
"Borrowing" means a borrowing consisting of simultaneous Loans having the
same Interest Period made by the Lenders pursuant to Section 2.01 of the
Existing Loan Agreement.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the
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Administrative Agent's Office is located and if such day relates to any interest
rate settings as to a Eurocurrency Rate Loan, any fundings, disbursements,
settlements and payments in Dollars in respect of any such Eurocurrency Rate
Loan, or any other dealings in Dollars to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means any such day on
which dealings in deposits in Dollars are conducted by and between banks in the
London interbank eurodollar market.
"Businesses" means, at any time, a collective reference to the businesses
operated by TRM and its Subsidiaries at such time.
"CAN Vault Cash Agreement" means that certain Cash Funding & ABM Services
Agreement, Contract No. 495-250-724 dated as of January 18, 2002 by and among,
inter alia, eFunds (Canada) Corporation f/k/a Access Cash Canada Co. and
Securicor Canada Limited, as from time to time amended, supplemented or
otherwise modified and in effect, and as assigned by eFunds (Canada) Corporation
to TRM (Canada) Corporation on November 19, 2004 and consented to by Securicor
on November 17, 2004.
"Canadian Security Agreement" means that certain Canadian Security and
Pledge Agreement dated the Closing Date executed in favor of the Administrative
Agent by each of TRM (Canada) Corporation and Mighty Cash Financial Services
Inc.
"Capital Lease" means, as applied to any Person, any lease of any Property
by that Person as lessee which, in accordance with GAAP, is required to be
accounted for as a capital lease on the balance sheet of that Person.
"Cash Collateralize" means to deposit, into a securities account or a
deposit account under the control and exclusive dominion of and otherwise
pledged to Administrative Agent for the benefit of the Lenders, an amount of
cash equal to, unless otherwise specified, the amount of the liability or
obligation being secured.
"Cash Equivalents" means, as at any date, (1) with respect to TRM or any of
its Subsidiaries: (a) securities issued or directly and fully guaranteed or
insured by the United States or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than twelve months from the date of
acquisition, (b) Dollar denominated time deposits and certificates of deposit of
(i) any Lender, (ii) any domestic commercial bank of recognized standing having
capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Moody's is at least P-1 or the equivalent thereof (any such bank being an
"Approved Bank"), in each case with maturities of not more than 270 days from
the date of acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any variable
rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or
the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within six months of the date of acquisition, (d)
repurchase agreements entered into by any Person with a bank or trust company
(including any of the Lenders) or recognized securities dealer having capital
and surplus in excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States in which such Person shall have a perfected
first priority security interest (subject to no other Liens) and having, on the
date of purchase thereof, a fair market value of at least 100% of the amount of
the repurchase obligations and (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered under the
Investment Company Act of 1940 which are administered by reputable financial
institutions having capital of at least $500,000,000 and the portfolios of which
are limited to Investments of the character described in the foregoing
subdivisions (a) through (d) and (2) with respect to any Foreign Subsidiary of
TRM: (a) obligations of the national government of the country in which such
Foreign Subsidiary maintains its chief executive office and
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principal place of business provided such country is a member of the
Organization for Economic Cooperation and Development, in each case maturing
within one year after the date of investment therein, (b) certificates of
deposit of, bankers acceptances of, or time deposits with, any commercial bank
which is organized and existing under the laws of the country in which such
Foreign Subsidiary maintains its chief executive office and principal place of
business provided such country is a member of the Organization for Economic
Cooperation and Development, and whose short-term commercial paper rating from
S&P is at least A-1 or the equivalent thereof or from Moody's is at least P-1 or
the equivalent thereof (any such bank being an "Approved Foreign Bank"), and in
each case with maturities of not more than 270 days from the date of acquisition
and (c) the equivalent of demand deposit accounts which are maintained with an
Approved Foreign Bank.
"Cash Flow Forecast" means a thirteen (13) week cash flow forecast and
budget for TRM and its Subsidiaries on a consolidated basis, including line
items for the amount of Revolving Loan Outstandings under the First Lien Credit
Agreement during each week of such thirteen (13) week period. Each Cash Flow
Forecast shall (i) contain reasonable detail and specificity, (ii) be certified
by a Responsible Officer of TRM as being based upon such information and
assumptions as such Responsible Officer reasonably believes to be accurate and
reasonable under the circumstances and (iii) otherwise be acceptable to
Administrative Agent and the Lenders (including as to budgeted amounts of
Revolving Loan Outstandings (as defined in the First Lien Credit Agreement)
during such thirteen (13) week period) in their sole discretion
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request (other than requests, the
compliance with which is of a purely voluntary nature and which could not
reasonably be expected to result in Material Adverse Effect if not complied
with), guideline or directive (whether or not having the force of law) by any
Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all Equity Interests that such person or group has the right to acquire
(such right, an "option right"), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
thirty-five (35%) of the Equity Interests of TRM entitled to vote for
members of the board of directors or equivalent governing body of TRM on a
fully diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of TRM
cease to be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause
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(ii) and clause (iii), any individual whose initial nomination for, or
assumption of office as, a member of that board or equivalent governing
body occurs as a result of an actual or threatened solicitation of proxies
or consents for the election or removal of one or more directors by any
person or group other than a solicitation for the election of one or more
directors by or on behalf of the board of directors);
(c) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation thereof, will result in its or their
acquisition of the power to exercise, directly or indirectly, a controlling
influence over the management or policies of TRM, or control over the
Voting Stock of TRM on a fully-diluted basis (and taking into account all
such Voting Stock that such Person or group has the right to acquire
pursuant to any option right) representing thirty-five (35%) or more of the
combined voting power of such Voting Stock;
(d) TRM fails to own 100% of the outstanding Equity Interests in TRM
LTD; or
(e) (i) TRM shall cease to beneficially own and control 100% on a
fully diluted basis of the economic and voting interest in the Equity
Interests of each of TRM ATM and TRM CC, (ii) TRM CC shall cease to
beneficially own and control 100% on a fully diluted basis of the economic
and voting interest in the Equity Interests of TRM (Canada) Corporation, a
corporation organized under the laws of Canada and registered as an
extraprovincial company under the laws of British Columbia (with additional
extraprovincial registrations in Quebec and Ontario), or (iii) TRM ATM
shall cease to beneficially own and control 100% on a fully diluted basis
of the economic and voting interest in the Equity Interests of Access Cash
International LLC, a Delaware Limited Liability company.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means a collective reference to all real and personal Property
with respect to which Liens in favor of the Administrative Agent, for the
benefit of itself and the Lenders, are purported to be granted pursuant to and
in accordance with the terms of the Collateral Documents.
"Collateral Documents" means a collective reference to the Security
Agreement, the Pledge Agreement, the Canadian Security Agreement and each other
security document as may be executed and delivered by the Loan Parties pursuant
to the terms of Section 7.14 of the Existing Loan Agreement together with each
instrument, agreement or document executed and delivered by a Loan Party in
connection with this Agreement.
"Commitment" has the meaning given it under the Existing Loan Agreement.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit 7.02.
"Consolidated Adjusted EBITDA" means, for any period, for TRM and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated EBITDA for
such period minus Consolidated Capital Expenditures (other than to the extent
financed by the incurrence of Indebtedness).
"Consolidated Capital Expenditures" means, for any period, for TRM and its
Subsidiaries on a consolidated basis, all capital expenditures, as determined in
accordance with GAAP; provided, however, that Consolidated Capital Expenditures
shall not include expenditures made with proceeds of any
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Involuntary Disposition to the extent such expenditures are used to purchase
Property that is the same as or similar to the Property subject to such
Involuntary Disposition but shall include expenditures made to implement Triple
DES technological upgrades to merchant owned ATMs ("Merchant Owned ATM
Technology Upgrades") and which are characterized on Borrowers' financial
statements as acquisition of intangibles and other assets or investments in
goodwill.
"Consolidated Cash Taxes" means, for any period, for TRM and its
Subsidiaries on a consolidated basis, the aggregate of all taxes, as determined
in accordance with GAAP, to the extent the same are paid in cash during such
period.
"Consolidated EBITDA" means, for any period, for TRM 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 TRM
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) losses (or less gains) from or associated with asset
dispositions; f) Non-recurring expenses of not greater than what is laid out in
Schedule 1-A; g) one-time cash expenses incurred in connection with the closing
of this Agreement so long as such expenses are reasonably documented do not
exceed $100,000 in the aggregate, all as determined in accordance with GAAP.
"Consolidated Funded Indebtedness" means Funded Indebtedness of TRM and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.
"Consolidated Interest Charges" means, for any period, for TRM and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) all
interest, premium payments, debt discount, fees, charges and related expenses in
connection with borrowed money (including capitalized interest) or in connection
with the deferred purchase price of assets, in each case to the extent treated
as interest in accordance with GAAP, plus (ii) the portion of rent expense with
respect to such period under Capital Leases that is treated as interest in
accordance with GAAP plus (iii) the implied interest component of Synthetic
Leases with respect to such period plus (or minus) (iv) cash payments (or cash
receipts) in respect of periodic settlements on interest rate hedging
agreements. Consolidated Interest Charges shall not include "rental" or similar
costs of cash payable by TRM or any Subsidiary to TRM Inventory Funding Trust or
any other Person in connection with obtaining "vault cash" pursuant to the Vault
Cash Agreements.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended for which TRM has delivered financial statements pursuant to Section
7.01(a) or (b).
"Consolidated Net Income" means, for any period, for TRM and its
Subsidiaries on a consolidated basis, the net income of TRM and its Subsidiaries
(excluding extraordinary gains) for that period, as determined in accordance
with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power,
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by contract or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto. Without limiting the generality of the foregoing, a Person
shall be deemed to be Controlled by another Person if such other Person
possesses, directly or indirectly, power to vote 20% or more of the securities
having ordinary voting power for the election of directors, managing general
partners or the equivalent.
"Debt Issuance" means the issuance by TRM or any Subsidiary of any
Indebtedness other than Indebtedness that is either permitted under Section 8.03
or otherwise approved by the Required Lenders.
"Debtor Relief Laws" means the Bankruptcy Code of the United States and all
other liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means an interest rate equal to (i) the Base Rate plus (ii)
the Applicable Margin, plus (iii) 2.0% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, required to be funded by it hereunder within one Business
Day of the date required to be funded by it hereunder, (b) has otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Defaulting Lender Rate" means (a) for the first 3 days from and after the
date the relevant payment is due, the Base Rate, and (b) thereafter, the
interest rate then applicable to Loans that are Eurocurrency Rate Loans.
"Deposit Account" means any deposit account (as that term is defined in the
Uniform Commercial Code).
"Designated Account" means the Deposit Account of Borrower Representative
identified on Schedule 1.01-B.
"Designated Account Bank" has the meaning specified therefor in Schedule
1.01-C.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any Property
by TRM or any Subsidiary (including the Equity Interests of any Subsidiary),
including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding any Involuntary Disposition.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the laws
of any political subdivision of the United States.
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"Eligible Assets" means Property that is used or useful in the same or a
similar line of business as TRM and its Subsidiaries were engaged in on the
Closing Date (or any reasonable extensions, replacements or expansions thereof).
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Required Lenders, and (ii) unless an Event of Default has
occurred and is continuing, Borrower Representative (each such approval not to
be unreasonably withheld or delayed and no approval of Borrower Representative
shall be required in connection with assignments made by the GSO Fund within 30
days of the Closing Date in connection with the primary syndication of the Loans
and Commitments); provided that notwithstanding the foregoing, "Eligible
Assignee" shall not include TRM, any of TRM's Affiliates or Subsidiaries or any
officer or director thereof or any Affiliates of such Persons.
"Environmental Laws" means any and all federal, state, local, foreign and
other applicable statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of TRM or any of its Subsidiaries directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"Equity Issuance" means any issuance by TRM or any Subsidiary to any Person
of its Equity Interests, other than (a) any issuance of its Equity Interests
pursuant to the exercise of options or warrants, (b) any issuance of its Equity
Interests pursuant to the conversion of any debt securities to equity or the
conversion of any class equity securities to any other class of equity
securities, (c) any issuance of options or warrants relating to its Equity
Interests, or (d) any issuance of its Equity Interests to an employee, officer
or director or former employee, officer or director pursuant to a stock
incentive plan, stock option plan or other equity-based compensation plan or
arrangement. The term "Equity Issuance" shall not be deemed to include any
Disposition.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with TRM within the meaning of Section 414(b) or (c) of the
Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
9
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by TRM or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer
(as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by TRM or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon TRM or any ERISA Affiliate.
"Eurocurrency Rate" means the rate per annum, determined by Administrative
Agent in accordance with its customary procedures, and utilizing such electronic
or other quotation sources as it considers appropriate (rounded upwards, if
necessary, to the next 1/100%), to be the rate at which Dollar deposits (for
delivery on the first day of the requested Interest Period) are offered to major
banks in the London interbank market 2 Business Days prior to the commencement
of the requested Interest Period, for a term and in an amount comparable to the
Interest Period and the amount of the Eurocurrency Rate Loan requested (whether
as an initial Eurocurrency Rate Loan or as a continuation of a Eurocurrency Rate
Loan or as a conversion of a Base Rate Loan to a Eurocurrency Rate Loan) by
Borrower Representative in accordance with the Agreement, which determination
shall be conclusive in the absence of manifest error.
"Eurocurrency Rate Loan" means a Loan that bears interest at a rate based
on the Eurocurrency Rate.
"Eurocurrency Rate Loan" has the meaning specified in Section 2.02(a).
"Event of Default" has the meaning specified in Section 9.01.
"Excluded Property" means:
(a) with respect to any Loan Party, (i) any owned or leased real
Property unless requested by the Administrative Agent or the Required
Lenders, (ii) any personal Property (including, without limitation, motor
vehicles) in respect of which perfection of a Lien is not either (A)
governed by the Uniform Commercial Code or (B) effected by appropriate
evidence of the Lien being filed in either the United States Copyright
Office or the United States Patent and Trademark Office, unless requested
by the Administrative Agent or the Required Lenders, (iii) any Property
which, subject to the terms of Section 8.09, is subject to a Lien of the
type described in Section 8.01(i) pursuant to documents which prohibit such
Loan Party from granting any other Liens in such Property and (iv) any
permit, lease, license, contract or other instrument of such Person if the
grant of a security interest in such permit, lease, license, contract or
other instrument in the manner contemplated by this Agreement, is
prohibited under the terms thereof or under applicable Law and would result
in the termination thereof or give the other parties thereto the right to
terminate, accelerate or otherwise alter such Person's rights, titles and
interests thereunder (including upon the giving of notice or the lapse of
time or both) but only to the extent that (A) consent from the relevant
party or parties has not been obtained and (B) such prohibition is not
rendered ineffective pursuant to the UCC or any other applicable law
(including Debtor Relief Laws); and
10
(b) with respect to any Foreign Subsidiary, (i) any owned or leased
real Property unless requested by the Administrative Agent or the Required
Lenders, (ii) any Property which, subject to the terms of Section 8.09, is
subject to a Lien of the type described in Section 8.01(i) pursuant to
documents which prohibit such Loan Party from granting any other Liens in
such Property, (iii) any permit, lease, license, contract or other
instrument of such Person if the grant of a security interest in such
permit, lease, license, contract or other instrument in the manner
contemplated by this Agreement, is prohibited under the terms thereof or
under applicable Law and would result in the termination thereof or give
the other parties thereto the right to terminate, accelerate or otherwise
alter such Person's rights, titles and interests thereunder (including upon
the giving of notice or the lapse of time or both) but only to the extent
that (A) consent from the relevant party or parties has not been obtained
and (B) such prohibition is not rendered ineffective pursuant to the UCC or
any other applicable law (including Debtor Relief Laws) and (iv) any other
Property for which, in the reasonable judgment of the Administrative Agent
and the Required Lenders, (A) the expense of granting and perfecting a
security interest therein under applicable Law is excessive given the value
of such Property or (B) the granting and perfecting a security interest
therein would have a material adverse impact on the operation of the
business of any Loan Party or would result in a material tax liability to
any Loan Party.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of a Borrower hereunder, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable Lending Office is located, (b) any branch profits taxes imposed by
the United States or any similar tax imposed by any other jurisdiction in which
such Borrower is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by Borrower Representative under Section 11.13),
any withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party hereto (or designates a new Lending
Office) or is attributable to such Foreign Lender's failure or inability (other
than as a result of a Change in Law) to comply with Section 3.01(e), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the applicable Borrower with respect to such withholding
tax pursuant to Section 3.01(a).
"Existing Loan Agreement" is defined in the Recitals to this Agreement.
"Exposure" means, with respect to any Lender, such Lender's Applicable
Percentage of the Outstanding Amount of the Term Loan.
"Facilities" means, at any time, a collective reference to the facilities
and real properties owned, leased or operated by TRM or any direct or indirect
Subsidiary.
"Fee Letter" means the letter agreement, dated June 6, 2006 among Borrowers
and GSO Capital Partners.
"First Lien Credit Agreement" means that certain Credit Agreement dated as
of June 6, 2006 by and among the Borrowers, WFF (as administrative agent
thereunder) and the GSO Fund as lender thereunder, as amended by that certain
First Amendment to Credit Agreement, dated as of November 14, 2006.
11
"First Lien Indebtedness" means the Indebtedness arising under and
evidenced by the First Lien Loan Documents.
"First Lien Loan Documents" means the First Lien Credit Agreement, those
certain Term Notes and Revolving Notes of even date herewith made by Borrowers
in the aggregate original principal amount of $41,000,000 and each other
document, instrument or agreement executed and/or delivered by Borrowers or any
affiliate thereof in connection with the transactions contemplated by any of the
foregoing.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrowers are resident for tax
purposes. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current or long-term
(including the Obligations) and all obligations of such Person evidenced by
bonds, debentures, notes, loan agreements or other similar instruments;
(b) all purchase money Indebtedness;
(c) the principal portion of all obligations under conditional sale or
other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business);
(d) all obligations arising under letters of credit (including standby
and commercial), bankers' acceptances, bank guaranties, surety bonds and
similar instruments;
(e) all obligations in respect of the deferred purchase price of
property or services (including trade accounts payable in the ordinary
course of business which, by their express terms are not due earlier than
120 days after the date on which such trade account payable was created);
(f) the Attributable Indebtedness of Capital Leases, Synthetic Leases
and Securitization Transactions;
(g) all preferred stock or other Equity Interests providing for
mandatory redemptions, sinking fund or like payments prior to the Maturity
Date;
(h) all Funded Indebtedness of others secured by (or for which the
holder of such Funded Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien
12
on, or payable out of the proceeds of production from, Property owned or
acquired by such Person, whether or not the obligations secured thereby
have been assumed, but only to the extent that the aggregate amount of such
Funded Indebtedness does not exceed the fair market value of Property;
(i) all Guarantees with respect to Funded Indebtedness of the types
specified in clauses (a) through (h) above of another Person;
(j) all obligations or liabilities that otherwise would constitute
Indebtedness hereunder but are characterized or treated as off-balance
sheet financing or obligations under GAAP; and
(k) all Funded Indebtedness of the types referred to in clauses (a)
through (j) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which
such Person is a general partner or joint venturer, except to the extent
that Funded Indebtedness is expressly made non-recourse to such Person.
For purposes hereof, the amount of any direct obligation arising under
letters of credit (including standby and commercial), bankers' acceptances,
bank guaranties, surety bonds and similar instruments shall be the maximum
amount available to be drawn thereunder.
"Funding Date" means the date on which a Loan is continued as a
Eurocurrency Rate Loan (whether the same or a different Interest Period).
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, consistently applied
and as in effect from time to time.
"Governmental Authority" means the government of the United States, the
United Kingdom or any other nation, or of any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part) or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion
13
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith; provided that in the case
Guarantee described in clause (b) above where recourse is solely to the Property
of such Person subject to a Lien, the amount of such Guarantee shall be deemed
to be the lesser of the fair market value of such Property or the amount of such
Guarantee. The term "Guarantee" as a verb has a corresponding meaning.
"Guarantor" means each Subsidiary of TRM identified as a "Guarantor" on the
signature pages hereto and each other Person that joins as a Guarantor pursuant
to Section 7.12, together with their successors and permitted assigns. As of the
Closing Date, the Guarantors consist of TRM (Canada) Corporation, (Company No.
272484-7), a corporation organized under the laws of Canada, and Access Cash
International LLC, a Delaware limited liability company, and are referred to
collectively as the "Guarantors".
"Guaranty" means that certain Guaranty of even date herewith made by the
Guarantors in favor of the Administrative Agent and the Lenders pursuant to
Article IV.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Honor Date" has the meaning set forth in Section 2.03(c).
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all Funded Indebtedness;
(b) the Swap Termination Value of any Swap Contract;
(c) all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) and (b) above of any other Person; and
(d) all Indebtedness of the types referred to in clauses (a) through
(c) above of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such
Person is a general partner or joint venturer, unless such Indebtedness is
expressly made non-recourse to the applicable Person or such Subsidiary.
For avoidance of doubt, obligations with respect to the "leasing" or
"rental" of cash arising under Vault Cash Agreements (including surcharges and
interchanges fees payable pursuant to the terms thereof) shall not constitute
"Indebtedness" hereunder to the extent that such obligations do not constitute
and have not become recourse Indebtedness to TRM or any of its other
Subsidiaries.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 11.04(b).
"Intercreditor Agreement" means that certain Intercreditor and
Subordination Agreement dated as of June 6, 2006 by and among Borrower,
Administrative Agent and the agent under the First Lien Loan
14
Documents on behalf of the "Lenders" thereunder, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Interest Payment Date" means (a) as to any Eurocurrency Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurocurrency Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan, the last Business Day of each March, June,
September and December and the Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or continued as
a Eurocurrency Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the applicable Borrower in its Loan Notice; provided
that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business
Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of Equity Interests of another Person, (b) a loan, advance or
capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) an Acquisition. For purposes of
covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value
of such Investment and, for avoidance of doubt, neither (i) Consolidated Capital
Expenditures nor (ii) corporate overhead and corporate expenses incurred by TRM
and allocated to a Foreign Subsidiary in accordance with its pro rata share
thereof and accounted for as an intercompany payable pursuant to the books and
records of TRM, consistent with historical practice, shall be deemed an
Investment.
"Involuntary Disposition" means any loss of, damage to or destruction of,
or any condemnation or other taking for public use of, any Property of TRM or
any of its Subsidiaries.
"IP Rights" has the meaning specified in Section 6.17.
"IRS" means the United States Internal Revenue Service.
"Joinder Agreement" means a joinder agreement substantially in the form of
Exhibit 7.12 executed and delivered by a Subsidiary in accordance with the
provisions of Section 7.12.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities,
15
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"Lender Group" means, individually and collectively, each of the Lenders
and Administrative Agent.
"Lenders" means the Term A Lenders and the Term B Lenders, collectively.
"Lending Office" means, as to any Lender, the office or offices of such
Lender designated by such Lender in writing to the Administrative Agent and
Borrower Representative, or such other office or offices as a Lender may from
time to time notify Borrower Representative and the Administrative Agent.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or, to the extent constituting a security interest under applicable Law,
other title retention agreement, any easement, right of way or other encumbrance
on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).
"Loan" means the Term Loan which shall be Eurocurrency Rate Loans when
made.
"Loan Account" has the meaning specified therefor in Section 2.17 hereof.
"Loan Documents" means this Agreement, each Note, the Intercreditor
Agreement, the UK Pledge Agreement, the Bank Product Agreements, each Issuer
Document, each Joinder Agreement, the Collateral Documents, that certain
Milestone Side Letter Agreement of even date herewith by and among Borrowers,
Administrative Agent and Lenders, the Registration Rights Agreement, the
Warrants and all other documents, instruments and agreements contemplated herein
or thereby and executed concurrently herewith, in connection with the Existing
Loan Agreement or at any time and from time to time hereafter, as any or all of
the same may be amended, supplemented, restated or otherwise modified from time
to time.
"Loan Notice" means a notice of a continuation of Eurocurrency Rate Loans,
in each case pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit 2.02.
"Loan Parties" means, collectively, the Borrowers and the Guarantors.
"Majority Term B Lenders" means, as of any date, Term B Lenders holding
more than 50% of the Outstanding Amount of the Term B Loan.
"Material Adverse Effect" means, with respect to any event, act, condition,
circumstance or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition, circumstance, conditions or occurrences, whether or not
related, (a) a material adverse change in, or a material adverse effect upon,
the operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of any Borrower, the Loan
parties taken as a whole, or the UK Loan Parties taken as a whole; (b) a
material impairment of the ability of any Loan Party to perform its obligations
under any Loan Document to which it is a party; (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against any Loan
Party
16
of any Loan Document to which it is a party or (d) a material adverse change in,
or a material adverse effect upon the existence, validity, perfection or
priority of any security interest granted in any Loan Document or the value of
any material Collateral.
"Material Contract" means (a) (i) any employment agreements covering
executive or key management of any Loan Party, (ii) collective bargaining
agreements or other labor agreements covering any employees of any Loan Party,
(iii) agreements for managerial, consulting or similar services to which any
Loan Party is a party or by which it is bound, (iv) real estate leases,
intellectual property licenses or other lease or license agreements to which any
Loan Party is a party, either as lessor or lessee, or as licensor or licensee
thereunder, (v) customer, distribution, marketing or supply agreements to which
any Loan Party is a party (other than purchase and sale orders arising in the
ordinary course of business, consistent with historical practice), in each case
with respect to the preceding clauses (i), (iii), (iv) and (v) requiring payment
of more than $1,000,000 in any year, (vi) partnership agreements to which any
Loan Party is a general partner or joint venture agreements to which any Loan
Party is a party or (vii) any other agreements or instruments to which any Loan
Party is a party, and the breach, nonperformance or cancellation of which, or
the failure of which to renew, could reasonably be expected to have a Material
Adverse Effect, and (b) or any contract or agreement which generates or is
expected to account for $500,000 or more of any Loan Party's annual gross
revenues.
"Maturity Date" means (i) with respect to the Term A Loan, February 28,
2007, and (ii) with respect to the Term B Loan, June 6, 2012.
"Moody's" means Moody's Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which TRM or any ERISA Affiliate makes or is
obligated to make contributions, or during the preceding five plan years, has
made or been obligated to make contributions.
"Net Cash Proceeds" means the aggregate cash or Cash Equivalents proceeds
received by a Borrower or any Subsidiary in respect of any Disposition, Equity
Issuance, Debt Issuance or Involuntary Disposition, net of (a) direct costs
incurred in connection therewith (including, without limitation, legal,
accounting and investment banking fees, and sales commissions), (b) taxes paid
or payable as a result thereof and (c) in the case of any Disposition, the
amount necessary to retire any Indebtedness secured by a Permitted Lien (ranking
senior to any Lien of the Administrative Agent or, if consented to by the
Required Lenders, any other Indebtedness secured by such Permitted Lien and
ranking pari passu or junior to any Lien of the Administrative Agent) on the
related Property; it being understood that "Net Cash Proceeds" shall include,
without limitation, any cash or Cash Equivalents received upon the sale or other
disposition of any non-cash consideration received by a Borrower or any
Subsidiary in any Disposition, Equity Issuance, Debt Issuance or Involuntary
Disposition.
"Note(s)" has the meaning specified in Section 2.11(a).
"Obligations" means (a) all advances to, and debts, liabilities,
obligations (including indemnification obligations), covenants and duties of,
any Loan Party arising under any Loan Document or otherwise with respect to any
Loan, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding and (b) the
Bank Product Obligations. The foregoing shall also include all obligations under
any Swap
17
Contract between any Loan Party and any Lender or Affiliate of a Lender that is
permitted to be incurred pursuant to Section 8.03(d).
"Original Closing Date" means June 6, 2006.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies (other than Excluded
Taxes) arising from any payment made hereunder or under any other Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.
"Outstanding Amount" means on any date, the amount of the aggregate
outstanding principal amount of the applicable Term Loan after giving effect to
any prepayments or repayments thereof occurring on such date;.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by TRM or any ERISA
Affiliate or to which TRM or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
"Permitted Investments" means, at any time, Investments by a Borrower or
any of its Subsidiaries permitted to exist at such time pursuant to the terms of
Section 8.02.
"Permitted Liens" means, at any time, Liens in respect of Property of a
Borrower or any of its Subsidiaries permitted to exist at such time pursuant to
the terms of Section 8.01.
"Permitted Transfers" means (a) Dispositions of inventory in the ordinary
course of business (which includes ATMs and photocopiers either held for sale or
lease or otherwise transferred or sold to customers in the ordinary course of
business consistent with historical practice in an aggregate amount not to
exceed $500,000 per fiscal year of Borrowers); (b) Dispositions of machinery and
equipment no longer used or useful in the conduct of business of the applicable
Borrower and its Subsidiaries that are Disposed of in the ordinary course of
business; (c) Dispositions of Property to a Borrower or any Subsidiary (other
than to any Dormant Subsidiary), provided, that if the transferor of such
Property is a Loan Party either (i) the transferee thereof must be a Loan Party
or (ii) to the extent such transaction constitutes an Investment, such
transaction is permitted under Section 8.02; (d) Dispositions of accounts
receivable in connection with the collection or compromise thereof; (e)
non-exclusive licenses, sublicenses, leases or subleases granted to others not
interfering in any material respect with the business of any Borrower and its
Subsidiaries and, in any event, the license of certain TRM name and trademark
rights to Digital 4 Convenience TLC for a period of two years in connection with
the sale by TRM of its
18
photocopier business in the United Kingdom; and (f) the sale or disposition of
Cash Equivalents for fair market value.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by TRM or, with respect to any such plan that
is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
"Pledge Agreements" means, collectively, (i) that certain Pledge Agreement
dated as of June 6, 2006 made by TRM in favor of Administrative Agent with
respect to its equity interests in the other Borrowers, (ii) that certain Pledge
Agreement made by TRM ATM and TRM CC with respect to their respective
Subsidiaries, and (iii) that certain Pledge Agreement made by TRM in favor of
Administrative Agent with respect to 65% of the issued and outstanding equity
securities of TRM LTD.
"Prepayment Premium" means (i) during the period beginning on the Closing
Date through June 6, 2007, three percent (3.0%), (ii) during the period
beginning on June 7, 2007 through June 6, 2008, two percent (2.0%), (iii) during
the period beginning on June 7, 2008 through June 6, 2009, one percent (1.0%)
and (iv) thereafter, zero percent (0.0%).
"Processing Agreements" means that certain Master Services Agreement dated
on or about November 19, 2004 between TRM ATM and eFunds Corporation and that
certain Money Access Service Processing Agreement dated March 3, 1999 between
Star Processing, Inc. (f/k/a Money access Services, Inc.) and TRM ATM, as each
such agreement may be amended, restated, supplemented or otherwise modified from
time to time.
"Pro Forma Basis" means, for purposes of calculating the financial
covenants set forth in Section 8.11, that any Disposition (other than Permitted
Transfers), Involuntary Disposition, Acquisition or Restricted Payment of the
type described in Section 8.06(c) shall be deemed to have occurred as of the
first day of the most recent four fiscal quarter period preceding the date of
such transaction for which the Borrowers were required to deliver financial
statements pursuant to Section 7.01(a) or (b). In connection with the foregoing,
(a) with respect to any Disposition or Involuntary Disposition, (i) income
statement and cash flow statement items (whether positive or negative)
attributable to the Property disposed of shall be excluded to the extent
relating to any period occurring prior to the date of such transaction and (ii)
Indebtedness which is retired shall be excluded and deemed to have been retired
as of the first day of the applicable period and (b) with respect to any
Acquisition, (i) income statement items attributable to the Person or Property
acquired shall be included to the extent relating to any period applicable in
such calculations to the extent (A) such items are not otherwise included in
such income statement items for TRM and its Subsidiaries in accordance with GAAP
or in accordance with any defined terms set forth in Section 1.01 and (B) such
items are supported by financial statements or other information reasonably
satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or
assumed by a Borrower or any Subsidiary (including the Person or Property
acquired) in connection with such transaction and any Indebtedness of the Person
or Property acquired which is not retired in connection with such transaction
(A) shall be deemed to have been incurred as of the first day of the applicable
period and (B) if such Indebtedness has a floating or formula rate, shall have
an implied rate of interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of determination.
"Pro Forma Compliance Certificate" means a certificate of a Responsible
Officer of Borrower Representative containing reasonably detailed calculations
of the financial covenants set forth in Section
19
8.11 as of the most recent fiscal quarter end for which the Borrowers were
required to deliver financial statements pursuant to Section 7.01(a) or (b)
after giving effect to the applicable transaction on a Pro Forma Basis.
"Property" means any interest of any kind in any property or asset, whether
real, personal or mixed, or tangible or intangible.
"Register" has the meaning specified in Section 11.06(c).
"Registration Rights Agreement" is defined in the Recitals to this
Agreement.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the thirty-day notice period has been waived.
"Required Lenders" means, (i) at any time any Term A Loan Obligations are
outstanding, those Term A Lenders holding at least 66 2/3% of the aggregate
Outstanding Amount of the Term A Loan Obligations, and (ii) at all times after
payment in full, in cash of all Obligations owing to the Term A Lenders, the
Term B Lenders holding at least 66 2/3% of the aggregate Outstanding Amount of
the Term B Loan Obligations.
"Responsible Officer" means the chief executive officer, president,
treasurer, managing director or chief financial officer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interests of a
Borrower or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Equity Interests or on account of any return of capital to a Borrower's
stockholders, partners or members (or the equivalent Person thereof), or any
setting apart of funds or Property for any of the foregoing.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"Same Day Funds" means immediately available funds denominated in Dollars.
"SEC" means the U.S. Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Securitization Transaction" means, with respect to any Person, any
financing transaction or series of financing transactions (including factoring
arrangements) pursuant to which such Person or any Subsidiary of such Person may
sell, convey or otherwise transfer, or grant a security interest in, accounts,
payments, receivables, rights to future lease payments or residuals or similar
rights to payment to a special purpose subsidiary or affiliate of such Person.
20
"Security Agreement" means the Security and Pledge Agreement dated as of
the Closing Date executed in favor of the Administrative Agent by each of the
Loan Parties.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the ordinary course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(c) such Person is not engaged in a business or a transaction, and is not about
to engage in a business or a transaction, for which such Person's Property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability. In
determining whether a Person is Solvent, credit shall be given for subrogation,
contribution and similar rights in favor of such Person.
"Specified Obligations" means Obligations consisting of principal of and
interest on the Term Loan and fees.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of Voting Stock is at the time beneficially owned, or the management of
which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of TRM.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other similar master agreement (any such
master agreement, together with any related schedules, a "Master Agreement"),
including any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s) and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
21
"Synthetic Lease" means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement
whereby the arrangement is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease or does not otherwise appear on
a balance sheet under GAAP.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Term A Lender" means each of the Persons identified as a "Term A Lender"
on the signature pages hereto, any Person which becomes a Term A Lender by
executing an Assignment and Assumption Agreement pursuant hereto, and their
successors and assigns.
"Term A Loan" has the meaning specified in Section 2.01(b).
"Term B Lender" means each of the Persons identified as a "Term B Lender"
on the signature pages hereto, any Person which becomes a Lender by executing an
Assignment and Assumption Agreement pursuant hereto, and their successors and
assigns.
"Term B Loan" has the meaning specified in Section 2.01(b).
"Term Loans" means both Term A Loan and Term B Loan and "Term Loan" refers
to either Term A Loan or Term B Loan, as the context permits or requires.
"Tranche" means a category of Commitments and Loans thereunder. For
purposes hereof, each of the following comprises a separate Tranche: (a) the
Term Loans denominated as Eurocurrency Loans, and (b) any Base Rate Loans.
"TRM CC" has the meaning specified in the introductory paragraph hereto.
"TRM ATM" has the meaning specified in the introductory paragraph hereto.
"TRM LTD" means TRM (ATM) LIMITED, a company incorporated in England and
Wales, and a wholly owned Subsidiary of TRM.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding that Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"UK Indebtedness" means the Indebtedness evidenced by the UK Loan Documents
in a maximum aggregate principal Dollar Equivalent amount of $24,000,000.
"UK Loan Parties" means those Persons identified as a "Borrower" or a
"Guarantor" under the UK Loan Documents, together with their respective
successors and assigns.
"UK Loan Documents" means, collectively, (i) that certain Facility
Agreement by and among GSO Luxembourg Origination Funding S.a.r.l., as agent and
a lender thereunder ("GSO Lux"), and TRM LTD, as the borrower, (ii) that certain
Debenture of even date therewith issued by TRM LTD in favor of GSO Lux for the
benefit of the lenders thereunder, (iii) that certain Charge Over Shares of TRM
ATM Limited made by TRM in favor of GSO Lux, and (iv) that certain Guarantee
made by TRM in favor of
22
GSO Lux and the lenders under the UK Loan Documents with respect to the UK
Indebtedness, each of the foregoing dated as of June 6, 2006, together with each
other document, agreement, certificate or instrument executed and/or delivered
by any UK Loan Party in connection with the transactions contemplated by the UK
Loan Documents, all as hereafter amended, restated, supplemented or otherwise
modified from time to time.
"UK Pledge Agreement" means that certain Charge Over Shares dated the
Closing Date executed in favor of the Administrative Agent by TRM, as amended,
supplemented or otherwise modified from time to time.
"United Kingdom" and "UK" mean the United Kingdom of Great Britain and
Northern Ireland.
"United States" and "U.S." mean the United States of America.
"US Vault Cash Agreement" means that certain Loan and Servicing Agreement
dated as of March 17, 2000 by and among, inter alia, TRM Inventory Funding
Trust, TRM ATM, DZ Bank AG as amended by that certain Twelfth Amendment to Loan
and Sevicing Agreement dated as of September 30, 2006 and certain mesne
amendments and as from time to time further amended, restated, supplemented or
otherwise modified and in effect.
"Vault Cash Agreements" means, collectively, (i) the US Vault Cash
Agreement, and (ii) the CAN Vault Cash Agreement.
"Voting Stock" means, with respect to any Person, Equity Interests issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"Warrants" is defined in the Recitals to this Agreement.
"Wells Fargo" means Wells Fargo Bank, National Association, a national
banking association.
"Wholly Owned Subsidiary" means any Person 100% of whose Equity Interests
are at the time owned by a Borrower directly or indirectly through other Persons
100% of whose Equity Interests are at the time owned, directly or indirectly, by
a Borrower.
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation." The word "will"
shall be construed to have the same meaning and effect as the word "shall."
Unless the context requires otherwise, (i) any definition of or reference
to any agreement, instrument or other document (including any Organization
Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein or in any other Loan Document), (ii) any
reference herein to any
23
Person shall be construed to include such Person's successors and assigns,
(iii) the words "herein," "hereof" and "hereunder," and words of similar
import when used in any Loan Document, shall be construed to refer to such
Loan Document in its entirety and not to any particular provision thereof,
(iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, the Loan Document in which such references
appear, (v) any reference to any law shall include all statutory and
regulatory provisions consolidating, amending replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or
supplemented from time to time, (vi) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights, (vii) whenever a decision,
consent or approval is to be made hereunder within a party's discretion,
such discretion shall be reasonable (from the perspective of a secured
lender's judgment) and such decision, consent or approval shall not be
unreasonably withheld, delayed or conditioned unless it is expressly stated
hereunder that such decision, consent or approval is or can be conditioned
or is subject to the sole and/or absolute discretion of the party making
such determination and (viii) any reference herein or in any other Loan
Document to the satisfaction or repayment in full of the Obligations shall
mean the repayment in full in cash (or the Cash Collateralization in
accordance with the terms hereof) of all Obligations other than unasserted
contingent indemnification Obligations and other than any Bank Product
Obligations that by the terms of the applicable documents will remain
outstanding and that are not required by the provisions of this Agreement
to be repaid or Cash Collateralized.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means
"to and including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Generally. Except as otherwise specifically prescribed herein, all
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements; provided, however, that
calculations of Attributable Indebtedness under any Synthetic Lease or the
implied interest component of any Synthetic Lease shall be made by a Borrower in
accordance with accepted financial practice and consistent with the terms of
such Synthetic Lease.
(b) Changes in GAAP. Borrower Representative will provide a written summary
of material changes in GAAP and in the consistent application thereof with each
annual and quarterly Compliance Certificate delivered in accordance with Section
7.02(b). If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either
Borrower Representative or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrowers shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required
Lenders); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and
(ii) Borrower Representative shall provide to the
24
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.
(c) Calculations. Notwithstanding anything herein to the contrary, the
parties hereto acknowledge and agree that (i) all calculations of the financial
covenants in Section 8.11 shall be made on a Pro Forma Basis and (ii)
obligations with respect to the "leasing" or "rental" of cash arising under
Vault Cash Agreements and under that certain Agreement for the Provision of Cash
dated as of January 25, 2005 by and among TRM LTD and Alliance and Leicester
Commercial Bank Plc shall not constitute "Indebtedness" hereunder to the extent
that such obligations do not constitute recourse Indebtedness to the Borrowers
or any of their other respective Subsidiaries.
1.04 Times of Day.
Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
1.05 Rounding.
Any financial ratios required to be maintained by the Borrowers pursuant to
this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places
by which such ratio is expressed herein and rounding the result up or down to
the nearest number (with a rounding-up if there is no nearest number).
ARTICLE II
THE TERM LOANS AND WARRANTS
2.01 The Term Loans.
Subject to and in reliance upon the terms and conditions set forth in the
Existing Loan Agreement, each Term Lender severally agreed and made its portion
of the Term Loan (as defined in the Existing Loan Agreement and hereinafter, the
"Original Term Loan") to Borrower or acquired its pro rata interests therein
pursuant to assignments made in accordance with Section 11.06 hereof. The
Original Term Loan was fully funded on the Original Closing Date in an original
aggregate principal amount of $40,000,000, all of which is outstanding as of the
Closing Date. All Commitments of the Lenders under the Existing Loan Agreement
are fully funded and are hereby terminated. The Original Term Loan is hereby
divided into (i) a term loan ("Term A Loan") in an aggregate original principal
amount equal to $15,000,000 in accordance with each Term A Lender's Applicable
Percentage, and (ii) a term loan (the "Term B Loan") in an aggregate amount
equal to $25,000,000 in accordance with each Term B Lender's Applicable
Percentage. Amounts repaid on either Term Loan may not be re-borrowed. The Term
Loans shall consist only of Eurocurrency Rate Loans, as further provided herein.
2.02 Conversions and Continuations of Loans.
(a) The Term Loans and each continuation of Eurocurrency Rate Loans
comprising the Term Loans (each a "Eurocurrency Rate Loan") shall be made upon
the Borrower Representative's irrevocable notice to the Administrative Agent,
which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. three Business Days prior to the
Funding Date of any Borrowing of or continuation of Eurocurrency Rate Loans.
Each telephonic notice by Borrower
25
Representative pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of Borrower Representative. Each
continuation of a Eurocurrency Rate Loan shall be in a principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) the requested date of the
continuation (which shall be a Business Day), (ii) the principal amount of Loans
to be continued, and (iii) the duration of the Interest Period with respect
thereto. If Borrowers fail to give a timely notice requesting a continuation,
then the applicable Loans shall be continued as a Eurocurrency Rate Loan having
an Interest Period of one month. Any automatic continuation of Eurocurrency Rate
Loans shall be effective as of the last day of the Interest Period then in
effect. If Borrowers request a continuation of Eurocurrency Rate Loans in any
Loan Notice, but fail to specify an Interest Period, Borrowers will be deemed to
have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the
applicable Term Loans, and if no timely notice of a continuation is provided by
the Borrowers, the Administrative Agent shall notify each Lender of the details
of any automatic continuation, as described in the preceding subsection.
2.03 Reserved.
2.04 Continuations and Conversions of Loans.
(a) Except as otherwise provided herein, each Eurocurrency Rate Loan may be
continued only on the last day of the Interest Period for such Eurocurrency Rate
Loan. During the existence of a Default, no Loans may be continued as
Eurocurrency Rate Loans without the consent of the Required Lenders, and the
Required Lenders may demand that any or all of the then outstanding Eurocurrency
Rate Loans be converted immediately to Base Rate Loans.
(b) The Administrative Agent shall promptly notify the Borrower
Representative and the Lenders of the interest rate applicable to any Interest
Period for Eurocurrency Rate Loans upon determination of such interest rate. At
any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify Borrower Representative and the Lenders of any change in Wells Fargo's
prime rate used in determining the Base Rate promptly following the public
announcement of such change.
(c) After giving effect to all Borrowings and all continuations of Loans,
there shall not be more than five (5) Eurocurrency Rate Loans in effect at any
given time.
2.05 Prepayments.
(a) Voluntary Prepayments of Loans. Borrowers may, upon written notice to
the Administrative Agent, at any time or from time to time voluntarily prepay
the Term A Loan (subject to the last sentence of this Section 2.05(a)) in whole
or in part; provided that (A) such notice must be received by the Administrative
Agent not later than 11:00 a.m. three Business Days prior to any date of
prepayment of Eurocurrency Rate Loans and 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); and any prepayment of Term A Loan shall be applied to the
remaining principal amortization payments in their inverse order and (B) such
prepayment must be accompanied by the applicable Prepayment Premium. Each such
notice shall specify the date and amount of such prepayment and 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
26
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. Borrowers may not prepay the Term B
Loans, in whole or in part, so long as any principal balance of the Term A Loans
remain outstanding, without the prior written consent of the Term A Lenders,
which consent may be withheld or conditioned in the sole discretion of the Term
A Lenders.
(b) Mandatory Prepayments of Loans.
(i) Reserved.
(ii) Reserved.
(iii) Dispositions and Involuntary Dispositions. Subject to the terms
of the First Lien Loan Documents, the Borrowers shall prepay the Term Loans
in an aggregate amount equal to 100% of the Net Cash Proceeds of all
Dispositions (other than Permitted Transfers) and Involuntary Dispositions.
Any prepayment pursuant to this clause (ii) shall be applied as set forth
in clause (vii) below.
(iv) Reserved.
(v) Debt Issuances. Subject to the terms of the First Lien Loan
Documents, immediately upon receipt by any Loan Party of the Net Cash
Proceeds of any Debt Issuance, the Borrowers shall prepay the Loans as
hereafter provided in an aggregate amount equal to 100% of such Net Cash
Proceeds (such prepayment to be applied as set forth in clause (vii)
below).
(vi) Equity Issuances. Subject to the terms of the First Lien Loan
Documents, immediately upon the receipt by TRM of the Net Cash Proceeds of
any Equity Issuance, the Borrowers shall prepay the Loans in an aggregate
amount equal to 100% of such Net Cash Proceeds.
(vii) Application of Mandatory Prepayments. Unless a Default or Event
of Default exists all amounts required to be paid pursuant to this Section
2.05(b) shall, subject to the terms of the Intercreditor Agreement, be
applied first to the installments of principal due under the Term A Loan
ratably, to be applied to future installment payments in inverse order
until all Term Loan A Obligations are paid in full and then to repay
outstanding principal due under the Term B Loan ratably until paid in full.
Within the parameters of the applications set forth above, prepayments
shall be applied to Eurocurrency Rate Loans in direct order of Interest
Period maturities. All prepayments under this Section 2.05(b) shall be
subject to Section 3.05, but otherwise without premium or penalty, and
shall be accompanied by interest on the principal amount prepaid through
the date of prepayment. Application of repayments of the Obligations after
acceleration or maturity thereof shall be governed by Section 9.03 hereof.
(viii) Eurocurrency Prepayment Account. If the Borrowers are required
to make a mandatory prepayment of Eurocurrency Rate Loans under clauses
(iii), (iv), (v) or (vi) of this Section 2.05(b), so long as no Event of
Default exists, the Borrowers shall have the right, in lieu of making such
prepayment in full, to deposit an amount equal to such mandatory prepayment
with the Administrative Agent in a cash collateral account maintained
(pursuant to documentation reasonably satisfactory to the Administrative
Agent) by and in the sole dominion and control of the Administrative Agent.
Any amounts so deposited shall be held by the Administrative Agent as
collateral for the prepayment of such Eurocurrency Rate Loans and shall be
applied to the
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prepayment of the applicable Eurocurrency Rate Loans at the end of the
current Interest Periods applicable thereto or, sooner, at the election of
the Administrative Agent, upon the occurrence of an Event of Default. At
the request of Borrower Representative, amounts so deposited shall be
invested by the Administrative Agent in Cash Equivalents maturing on or
prior to the date or dates on which it is anticipated that such amounts
will be applied to prepay such Eurocurrency Rate Loans; any interest earned
on such Cash Equivalents will be for the account of the Borrowers and the
Borrowers will deposit with the Administrative Agent the amount of any loss
on any such Cash Equivalents to the extent necessary in order that the
amount of the prepayment to be made with the deposited amounts may not be
reduced.
2.06 Issuance of Warrants.
In consideration for entering into this Agreement, TRM shall issue to each
Term B Lender the Warrants with respect to the number of Warrant Shares equal to
3,072,074. On the Closing Date, TRM shall deliver to each Term B Lender the
Warrants that such Lender is acquiring hereunder at such closing, duly executed
on behalf of TRM and registered in the name of such Lender or its designee on
the books and records of TRM.
2.07 Repayment of Loans.
The entire outstanding principal amount of the Term Loans shall become due
and owing and Borrowers shall repay all Obligations in full, together with all
accrued and unpaid interest thereon, on the applicable Maturity Date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurocurrency Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum (the "Effective Rate")
equal to the sum of the Eurocurrency Rate for such Interest Period plus the
Applicable Margin; (ii) each Base Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable date of conversion at a
rate per annum equal to the Base Rate plus the Applicable Margin; and (iii) all
other Obligations that have been charged to the Loan Account pursuant to the
terms hereof shall bear interest on the daily balance thereof at a rate per
annum equal to the Eurocurrency Rate plus the Applicable Margin.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by a
Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration
or otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrowers shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
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(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein; provided, however, that interest due and payable pursuant to
clause (a) above shall be paid by Borrowers when due by adding such amounts to
the then outstanding principal balance of the applicable Term Loan and interest
will accrue on such capitalized interest at the applicable interest rates set
forth herein. The aggregate amount of capitalized interest (together with
interest thereon) shall be due and payable in full in one lump sum on the
earliest to occur of the following events: (i) the Maturity Date, or (ii) the
date that the Obligations hereunder are otherwise paid in full and the Loan
Documents are terminated, or (iii) the acceleration of all of the Obligations.
Interest hereunder shall be due and payable in accordance with the terms hereof
before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.
2.09 Fees.
The Borrowers shall pay to the Term A Lenders for their own respective
accounts, an amendment fee in the amount of $400,000, which fee shall be paid on
the Closing Date by adding the amount thereof to the outstanding principal
balance of the Term A Loan. Accordingly, Borrowers agree and acknowledge that,
on the Closing Date and after giving effect to the payment of the Amendment Fee,
the outstanding aggregate principal balance of the Term A Loan is $15,400,000.
Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever. All Fees payable hereunder or pursuant to any Loan Document
or the Fee Letter (as defined in the Existing Loan Agreement) shall be payable
in Dollars.
2.10 Computation of Interest and Fees.
All computations of interest for Loans and all other computations of fees
and interest shall be made on the basis of a 360-day year and actual days
elapsed. Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.11 Evidence of Debt.
The Loans made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Loans made by the Lenders to the Borrowers and the interest
and payments thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrowers
hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender to the Borrowers made
through the Administrative Agent, the Borrowers shall execute and deliver to
such Lender (through the Administrative Agent) a promissory note, which shall
evidence such Lender's Loans to the Borrowers in addition to such accounts or
records. Each such promissory note shall be in the form of Exhibit 2.11(a) (a
"Note"). Each Lender may attach schedules to its Note and endorse thereon the
date, amount, currency and maturity of its Loans and payments with respect
thereto.
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2.12 Payments Generally; Administrative Agent's Clawback.
(a) Reserved
(b) Loan Account. To the extent any payment is not made, Borrowers hereby
authorize Administrative Agent, from time to time, without prior notice to
Borrowers, to charge all interest and fees (when due and payable), all expenses
(as and when incurred), all charges, commissions, fees, and costs provided for
in Section 2.18(e) (as and when accrued or incurred), all fees and costs
provided for in Section 2.09 (as and when accrued or incurred), and all other
payments as and when due and payable under any Loan Document (including the
amounts due and payable with respect to the Term Loan) to Borrowers' Loan
Account, which amounts shall be added to the then outstanding principal balance
of the Term Loan and shall accrue interest at the rate then applicable to Term
Loans that are Eurocurrency Rate Loans.
(c) Reserved
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make payments pursuant to Section 11.04(c) are several and not
joint. The failure of any Lender to fund any such participation or to make any
payment under Section 11.04(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Loan, to purchase its participation or to make its payment under Section
11.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.13 Sharing of Payments by Lenders.
If any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
the Loans made by it, resulting in such Lender's receiving payment of a
proportion of the aggregate amount of such Loans or participations and accrued
interest thereon greater than its pro rata share thereof as provided herein,
then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them,
provided that:
(i) if any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to
(x) any payment made by Borrowers pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans to any assignee or participant, other than to a Borrower or any
Subsidiary thereof (as to which the provisions of this Section shall
apply).
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Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.14 Appointment of Borrower Representative.
(a) The Borrowers maintain an integrated cash management system reflecting
their interdependence on one another and the mutual benefits shared among them
as a result of their respective operations. In order to efficiently fund and
operate their respective businesses and minimize the number of borrowings which
they will make under this Agreement and thereby reduce the administrative costs
and record keeping required in connection therewith, including the necessity to
enter into and maintain separately identified and monitored borrowing
facilities, the Borrowers have requested, and the Administrative Agent and the
Lenders have agreed that, subject to Section 11.18 hereof, all Loans will be
advanced to and for the account of the Borrowers on a joint and several basis
pursuant to the wire transfer instructions specified herein Borrower
Representative. Each Borrower hereby acknowledges that it will be receiving a
direct benefit from the Term Loan made pursuant to this Agreement.
(b) Each Borrower hereby designates, appoints, authorizes and empowers TRM
as the "Borrower Representative" for all purposes under this Agreement, as its
agent to act as specified in this Agreement and each of the other Loan Documents
and the Borrower Representative hereby acknowledges such designation,
authorization and empowerment, and accepts such appointment. Each Borrower
hereby irrevocably authorizes and directs the Borrower Representative to take
such action on its behalf under the provisions of this Agreement and the other
Loan Documents, and any other instruments, documents and agreements referred to
herein or therein, and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the
Borrower Representative by the respective terms and provisions hereof and
thereof, and such other powers as are reasonably incidental thereto, including,
without limitation, to take the following actions for and on such Borrower's
behalf:
(i) to submit on behalf of each Eurocurrency Rate Loan Notices of
Continuations to the Administrative Agent in accordance with the provisions
of this Agreement;
(ii) to receive on behalf of each Borrower the proceeds of the Loans
in accordance with the provisions of this Agreement, such proceeds to be
disbursed to or for the account of the applicable Borrower as soon as
practicable after its receipt thereof; and
(iii) to submit on behalf of each Borrower, Compliance Certificates,
Excess Cash Flow Certificates and all other certificates, notices and other
communications given or required to be given hereunder.
The Borrower Representative is further authorized and directed by each
Borrower to take all such actions on behalf of such Borrower necessary to
exercise the specific power granted in clauses (i) through (iii) above and to
perform such other duties hereunder and under the other Loan Documents, and
deliver such documents as delegated to or required of the Borrower
Representative by the terms hereof or thereof. The administration by the
Administrative Agent and Lenders of the credit facility under this Agreement as
a co-borrowing facility with a borrower agent or representative in the manner
set forth herein is solely as an accommodation to the Borrowers and at their
request and neither the Administrative Agent nor any Lender shall incur any
liability to any Borrowers or the Borrower Representative as a result thereof.
(c) If and to the extent the Borrower Representative is a party to any
merger, consolidation or other transaction permitted under this Agreement such
that the Borrower Representative is not the
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surviving entity, the Borrowers shall appoint a replacement Borrower
Representative from among the remaining Borrowers, such replacement Borrower
Representative to be reasonably acceptable to Administrative Agent. Nothing in
this subsection 2.14(c) shall constitute Administrative Agent's or any Lender's
consent to, or waiver of any Event of Default arising from, any merger,
consolidation or other transaction involving the Borrower Representative that
violates any term or provision of this Agreement or any other Loan Document.
2.15 Crediting Payments.
The receipt of any payment item by Administrative Agent shall not be
considered a payment on account unless such payment item is a wire transfer of
immediately available federal funds made to the Administrative Agent's Account
or unless and until such payment item is honored when presented for payment.
Should any such payment item not be honored when presented for payment, then
Borrowers shall be deemed not to have made such payment and interest shall be
calculated accordingly. Anything to the contrary contained herein
notwithstanding, any such payment item shall be deemed received by
Administrative Agent only if it is received into the Administrative Agent's
Account on a Business Day on or before 2:00 p.m. If any payment item is received
into the Administrative Agent's Account on a non-Business Day or after 2:00 p.m.
on a Business Day, it shall be deemed to have been received by Administrative
Agent as of the opening of business on the immediately following Business Day.
All payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. The
Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender's Lending Office. Subject
to the definition of "Interest Period", if any payment to be made by a Borrower
shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.
2.16 Reserved.
2.17 Maintenance of Loan Account; Statements of Obligations.
Administrative Agent shall maintain an account on its books in the name of
Borrowers (the "Loan Account") on which Borrowers will be charged with the Term
Loan and with all other payment Obligations hereunder or under the other Loan
Documents, including, accrued interest, fees and expenses. In accordance with
Section 2.15, the Loan Account will be credited with all payments received by
Administrative Agent from Borrowers or for Borrowers' account. Administrative
Agent shall render statements regarding the Loan Account to Borrower
Representative, including principal, interest, fees, and including an
itemization of all charges and expenses owing, and such statements, absent
manifest error, shall be conclusively presumed to be correct and accurate and
constitute an account stated between Borrowers and the Lender Group unless,
within 30 days after receipt thereof by Borrower Representative, Borrower
Representative shall deliver to Administrative Agent written objection thereto
describing the error or errors contained in any such statements.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the respective Loan Parties hereunder or under any other Loan
Document shall be made free and clear of and
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without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if the applicable Loan Party shall be required by applicable law
to deduct any Indemnified Taxes (including any Other Taxes) from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such Loan
Party shall make such deductions and (iii) such Loan Party shall timely pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) Payment of Other Taxes by the Loan Parties. Without limiting the
provisions of subsection (a) above, each Loan Party shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Loan Parties. Each Loan Party shall indemnify
the Administrative Agent, each Lender, within 10 days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) paid by the Administrative Agent or such Lender and any
penalties, interest and reasonable out-of-pocket expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to a Loan
Party by a Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Loan Party to a Governmental Authority,
such Loan Party shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
a Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to such Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by such Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by a Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by such Borrower or the Administrative Agent as will enable
such Borrower or the Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, any Foreign Lender shall
deliver to a Borrower and the Administrative Agent (in such number of copies as
shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of such Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
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(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the applicable Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed copies
of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding
tax duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit such Borrower to determine the
withholding or deduction required to be made.
Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender's status for
U.S. withholding tax purposes, each Lender agrees promptly to deliver to the
Administrative Agent or the Borrowers, as the Administrative Agent or the
Borrowers shall reasonably request, on or prior to the Closing Date, and in a
timely fashion thereafter, such other documents and forms required by any
relevant taxing authorities under the Laws of any other jurisdiction, duly
executed and completed by such Lender, as are required under such Laws to
confirm such Lender's entitlement to any available exemption from, or reduction
of, applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrowers pursuant to this Agreement or
otherwise to establish such Lender's status for withholding tax purposes in such
other jurisdiction. Each Lender shall promptly (i) notify the Administrative
Agent of any change in circumstances which would modify or render invalid any
such claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws of any such jurisdiction
that any Borrower make any deduction or withholding for taxes from amounts
payable to such Lender. Additionally, each Borrower shall promptly deliver to
the Administrative Agent or any Lender, as the Administrative Agent or such
Lender shall reasonably request, on or prior to the Closing Date, and in a
timely fashion thereafter, such documents and forms required by any relevant
taxing authorities under the Laws of any jurisdiction, duly executed and
completed by such Borrower, as are required to be furnished by such Lender or
the Administrative Agent under such Laws in connection with any payment by the
Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
connection with the Loan Documents, with respect to such jurisdiction.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by any Loan Party or with
respect to which any Loan Party has paid additional amounts pursuant to this
Section, it shall pay to such Loan Party an amount equal to such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by
such Loan Party under this Section with respect to the Taxes or Other Taxes
giving rise to such refund), net of all reasonable out-of-pocket expenses of the
Administrative Agent, such Lender, and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund),
provided that each Loan Party, upon the request of the Administrative Agent,
such Lender agrees to repay the amount paid over to such Loan Party (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to any
Borrower or any other Person.
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3.02 Illegality.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or
to determine or charge interest rates based upon the Eurocurrency Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the
applicable interbank market, then, on notice thereof by such Lender to the
Borrower Representative through the Administrative Agent, any obligation of such
Lender to make or continue Eurocurrency Rate Loans in the affected currency or
currencies or, in the case of Eurocurrency Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and the Borrower Representative
that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrowers shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all such
Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on the last
day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon
any such prepayment or conversion, the applicable Borrower shall also pay
accrued interest on the amount so prepaid or converted.
3.03 Inability to Determine Rates.
If the Required Lenders determine that for any reason in connection with
any request for a Eurocurrency Rate Loan or a conversion to or continuation
thereof that (a) deposits are not being offered to banks in the applicable
offshore interbank market for such currency for the applicable amount and
Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan, or (c) the
Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will
promptly so notify Borrower Representative and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the applicable Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in
the affected currency or currencies or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.
3.04 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in
by, any Lender;
(ii) subject any Lender to any tax of any kind whatsoever with respect
to this Agreement or any Eurocurrency Rate Loan made by it, or change the
basis of taxation of payments to such Lender in respect thereof (except for
Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition
of, or any change in the rate of, any Excluded Tax payable by such Lender);
or
35
(iii) impose on any Lender or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurocurrency Rate
Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurocurrency Rate Loan (or of
maintaining its obligation to make any such Loan), or to reduce the amount
of any sum received or receivable by such Lender (whether of principal,
interest or any other amount) then, upon request of such Lender, the
Borrowers shall pay to such Lender, such additional amount or amounts as
will compensate such Lender, for such additional costs incurred or
reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law
affecting such Lender or any Lending Office of such Lender or such Lender's
holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's capital or on the capital
of such Lender's holding company, if any, as a consequence of this Agreement,
the Commitments of such Lender or the Loans made by, such Lender, to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrowers shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender setting forth
the amount or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in subsection (a) or (b) of this
Section and delivered to Borrower Representative shall be conclusive absent
manifest error. The Borrowers shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not
constitute a waiver of such Lender's right to demand such compensation, provided
that no Borrower shall be required to compensate a Lender pursuant to the
foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than six months prior to the date that such Lender
notifies Borrower Representative of the Change in Law giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof).
3.05 Compensation for Losses.
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Borrowers shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by Borrowers (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow or continue any Loan on the
date or in the amount notified by such Borrower; or
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(c) any assignment of a Eurocurrency Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by
Borrower Representative pursuant to Section 11.13;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan.
The Borrowers shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by Borrowers to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Base Rate used in
determining the Eurocurrency Rate for such Loan by a matching deposit or other
borrowing in the offshore interbank market for such currency for a comparable
amount and for a comparable period, whether or not such Eurocurrency Rate Loan
was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or a Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section
3.02, then such Lender shall use reasonable efforts to designate a different
Lending Office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the reasonable judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
3.01 or 3.04, as the case may be, in the future, or eliminate the need for the
notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not
subject such Lender to any un-reimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrowers hereby agree to pay all
reasonable costs and out-of-pocket expenses incurred by any Lender in connection
with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if any Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, the Borrowers may replace such Lender in accordance with Section
11.13.
3.07 Survival.
All of the Borrowers' obligations under this Article III shall survive
termination of the Commitments and repayment of all other Obligations hereunder.
ARTICLE IV
GUARANTY
4.01 The Guaranty.
(a) Each of the Guarantors hereby jointly and severally guarantees to the
Administrative Agent and each of the holders of the Obligations as hereinafter
provided, as primary obligor and not as surety, the prompt payment of the
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash
37
Collateralization or otherwise), the Guarantors will, jointly and severally,
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory Cash
Collateralization or otherwise) in accordance with the terms of such extension
or renewal.
(b) Reserved.
(c) Notwithstanding any provision to the contrary contained herein or in
any other of the Loan Documents, Swap Contracts, the obligations of each
Guarantor (in its capacity as such) under this Agreement and the other Loan
Documents shall be limited to an aggregate amount equal to the largest amount
that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable Law.
4.02 Obligations Unconditional.
(a) The obligations of the Guarantors under Section 4.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents or other
documents relating to the Obligations, or any substitution, compromise, release,
impairment or exchange of any other guarantee of or security for any of the
Obligations, and, to the fullest extent permitted by applicable Law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.02 that the obligations of the Guarantors
hereunder shall be absolute and unconditional under any and all circumstances.
Each Guarantor agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against any Borrower or any other
Guarantor for amounts paid under this Article IV until such time as the
Obligations have been irrevocably paid in full.
(b) Each Guarantor acknowledges that it is aware of the Existing Events of
Default, has received copies of this Agreement and each other amendment
contemplated to be delivered in connection with the First Lien Loan Documents
and the UK Loan Documents and unconditionally reaffirms its obligations
hereunder and under each other Loan Document to which it is a party.
(c) Without limiting the generality of the foregoing subsection (a), it is
agreed that, to the fullest extent permitted by Law, the occurrence of any one
or more of the following shall not alter or impair the liability of any
Guarantor hereunder, which shall remain absolute and unconditional as described
above:
(i) at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the Obligations
shall be extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any of the
Loan Documents, or other documents relating to the Obligations or any other
agreement or instrument referred to therein shall be done or omitted;
(iii) the maturity of any of the Obligations shall be accelerated, or
any of the Obligations shall be modified, supplemented or amended in any
respect, or any right under any of the Loan Documents or any other
documents relating to the Obligations or any other agreement or instrument
referred to therein shall be waived or any other guarantee of any of the
Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;
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(iv) any Lien granted to, or in favor of, the Administrative Agent or
any holder of the Obligations as security for any of the Obligations shall
fail to attach or be perfected; or
(v) any of the Obligations shall be determined to be void or voidable
(including for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including any creditor of any
Guarantor).
(d) With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest, notice of
acceptance of the guaranty given hereby and of extensions of credit that may
constitute obligations guaranteed hereby, notices of amendments, waivers,
consents and supplements to the Loan Documents and other documents relating to
the Obligations, or the compromise, release or exchange of collateral or
security, and all other notices whatsoever, and any requirement that the
Administrative Agent or any holder of the Obligations exhaust any right, power
or remedy or proceed against any Person under any of the Loan Documents or any
other documents relating to the Obligations or any other agreement or instrument
referred to therein, or against any other Person under any other guarantee of,
or security for, any of the Obligations.
4.03 Reinstatement.
Neither the Guarantors' obligations hereunder nor any remedy for the
enforcement thereof shall be impaired, modified, changed or released in any
manner whatsoever by an impairment, modification, change, release or limitation
of the liability of the Borrowers, by reason of any Borrower's bankruptcy or
insolvency or by reason of the invalidity or unenforceability of all or any
portion of the Obligations. In addition, the obligations of each Guarantor under
this Article IV shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of any Person in respect of the
Obligations is rescinded or must be otherwise restored by any holder of any of
the Obligations, whether as a result of any Debtor Relief Law or otherwise, and
each Guarantor agrees that it will indemnify the Administrative Agent and each
holder of the Obligations on demand for all reasonable costs and expenses
(including the fees, charges and disbursements of counsel) incurred by the
Administrative Agent or such holder of the Obligations in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any Debtor Relief Law.
4.04 Certain Waivers.
Each Guarantor acknowledges and agrees that (a) the guaranty given hereby
may be enforced without the necessity of resorting to or otherwise exhausting
remedies in respect of any other security or collateral interests, and without
the necessity at any time of having to take recourse against the Borrowers
hereunder or against any collateral securing the Obligations or otherwise, and
(b) it will not assert any right to require that action first be taken against
the Borrowers or any other Person (including any co-guarantor) or pursuit of any
other remedy or enforcement any other right, and (c) nothing contained herein
shall prevent or limit action being taken against the Borrowers hereunder, under
the other Loan Documents or the other documents and agreements relating to the
Obligations or, foreclosure on any security or collateral interests relating
hereto or thereto, or the exercise of any other rights or remedies available in
respect thereof, if neither the Borrowers nor the Guarantors shall timely
perform their obligations, and the exercise of any such rights and completion of
any such foreclosure proceedings shall not constitute a discharge of the
Guarantors' obligations hereunder unless as a result thereof, the Obligations
shall have been paid in full, it being the purpose and intent that the
Guarantors' obligations hereunder be absolute, irrevocable, independent and
unconditional under all circumstances. Each Guarantor agrees that such Guarantor
shall have no right of recourse to security for the Obligations, except
39
through the exercise of rights of subrogation in accordance with to Section 4.02
and through the exercise of rights of contribution pursuant to Section 4.06.
4.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by Law, as
between the Guarantors, on the one hand, and holders of the Obligations, on the
other hand, the Obligations may be declared to be forthwith due and payable as
provided in Section 9.02 (and shall be deemed to have become automatically due
and payable in the circumstances specified in Section 9.02) for purposes of
Section 4.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.01. The Guarantors acknowledge and agree that their
obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the holders of the Obligations may exercise their remedies
thereunder in accordance with the terms thereof.
4.06 Rights of Contribution.
The Guarantors hereby agree as among themselves that, in connection with
payments made hereunder, each Guarantor shall have a right of contribution from
each other Guarantor in accordance with applicable Law. Such contribution rights
shall be subordinate and subject in right of payment to the Obligations until
such time as the Obligations have been irrevocably paid in full, and none of the
Guarantors shall exercise any such contribution rights until the Obligations
have been irrevocably paid in full.
4.07 Guaranty of Payment; Continuing Guarantee.
(a) The guarantee given by the Guarantors in this Article IV is a guaranty
of payment and not of collection, is a continuing guarantee, and shall apply to
all Obligations whenever arising.
(b) Reserved.
(c) If, for any reason, notwithstanding the foregoing, the obligations and
agreements of a Guarantor herein cease to be a continuing security, the
liability of such Guarantor hereunder at the date of such cessation shall remain
regardless of any subsequent increase or reduction in the amounts due from any
Borrower in respect of the Obligations. To the extent (if at all) relevant,
this perpetuity period for the rights herein contained is 80 years from the date
and time of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO THIS AGREEMENT
5.01 Conditions of Effectiveness of this Agreement.
The effectiveness of this Agreement is subject to satisfaction of the
following conditions precedent:
(a) Loan Documents. Receipt by the Administrative Agent of executed
counterparts of this Agreement and the other Loan Documents, each properly
executed by a Responsible Officer of the signing Loan Party and, in the
case of this Agreement, by each Lender.
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(b) Opinions of Counsel. Receipt by the Administrative Agent of
favorable opinions of legal counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, dated as of the Closing Date, and in
form and substance satisfactory to the Administrative Agent.
(c) Financial Statements. The Administrative Agent shall have received
a Cash Flow Forecast as of November 9, 2006, together with updated
financial projections through the Maturity Date of the Term A Loan.
(d) No Material Adverse Change. Other than as specifically identified
on Schedule 5.01(d), there shall not have occurred a material adverse
change since the Original Closing Date in the business, assets, liabilities
(actual or contingent), operations, condition (financial or otherwise) or
prospects of TRM and its Domestic Subsidiaries, taken as a whole.
(e) Litigation. There shall not exist any action, suit, investigation
or proceeding pending or threatened in any court or before an arbitrator or
Governmental Authority that could reasonably be expected to have a Material
Adverse Effect.
(f) Organization Documents, Resolutions, Etc. Receipt by the
Administrative Agent of the following, each of which shall be originals or
facsimiles (followed promptly by originals), in form and substance
satisfactory to the Administrative Agent and its legal counsel:
(i) a statement that the organizational documents delivered by
the Loan Parties to the Administrative Agent in connection with the
transactions consummated on the Original Closing Date have not been
rescinded, amended, supplemented or otherwise modified and are in full
force and effect, certified by a secretary or assistant secretary of
such Loan Party to be true and correct as of the Closing Date;
(ii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party; and
(iii) such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is duly
organized or formed, and is validly existing, in good standing and
qualified to engage in business in its state of organization or
formation, the state of its principal place of business and each other
jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, except to the
extent that failure to do so could not reasonably be expected to have
a Material Adverse Effect.
(g) Bank Accounts. Receipt by the Administrative Agent of evidence
that all deposit accounts and securities accounts of each Loan Party is
subject to an account control agreement in form and substance reasonably
acceptable to Administrative Agent and the Lenders.
(h) Warrants; Registration Rights Agreement. Receipt by the
Administrative Agent on behalf of the Term B Lenders of the executed
counterparts of the Registration Rights Agreement and the Warrants,
properly executed by a Responsible Officer of TRM.
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(i) Government Consent. Receipt by the Administrative Agent of
evidence that all governmental, shareholder and material third party
consents and approvals necessary in connection with the transactions
contemplated by this Agreement have been received, and no law or regulation
shall be applicable which in the judgment of the Administrative Agent could
have such effect.
(j) UK Loan Documents. Receipt by the Administrative Agent of copies
of the fully executed amendment to the UK Loan Documents, amending such
documents in a manner consistent with the terms contemplated hereunder,
including, without limitation, waiving existing events of default
thereunder and providing the requisite consents to the transactions
contemplated hereunder, certified by a Responsible Officer of Borrower
Representative as being true, correct and complete, together with evidence
that all conditions precedent to the effectiveness thereof have been either
waived or fully satisfied.
(k) First Lien Loan Documents. Receipt by the Administrative Agent of
copies of the fully executed amendment to the First Lien Loan Documents,
amending such documents in a manner consistent with the provisions hereof,
including, without limitation, waiving existing events of default
thereunder and providing the requisite consents to the transactions
contemplated hereunder, certified by a Responsible Officer of Borrower
Representative as being true, correct and complete, together with (i)
evidence that all conditions precedent to the effectiveness thereof, but
for the execution and delivery of this Agreement, have been either waived
or fully satisfied and (ii) a fully executed counterpart original of a
reaffirmation of the Intercreditor Agreement.
(l) Reserved.
(m) Reserved.
(n) Fees. Receipt by the Administrative Agent and the Lenders of any
fees required to be paid on or before the Closing Date.
(o) Attorney Costs. The Borrowers shall have paid all fees, charges
and disbursements of counsel to GSO Capital Partners, each Lender and the
Administrative Agent previously invoiced in connection with the
transactions consummated on and since the Original Closing Date and all
such fees, charges and disbursements incurred by any such Person in
connection with the preparation, negotiation, execution and delivery of
this Agreement and in connection with the transactions contemplated
hereunder.
Each Request for Continuation submitted by a Borrower shall be deemed to be
a representation and warranty as to the facts specified and that the conditions
specified herein and the conditions specified in Section 5.01 of the Existing
Loan Agreement (which provisions are incorporated herein as though fully set
forth above, notwithstanding the termination of said agreement) have been
satisfied on and as of the date of the applicable Continuation.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and the
Lenders as follows:
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6.01 Existence, Qualification and Power.
Each Loan Party (a) is duly organized, incorporated or formed, validly
existing and (to the extent the concept of good standing exists in such
jurisdiction) in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party, and (c) is duly
qualified and is licensed and (to the extent the concept of good standing exists
in such jurisdiction) in good standing under the Laws of each jurisdiction where
its ownership, lease or operation of properties or the conduct of its business
requires such qualification or license; except in each case referred to in
clause (b)(i) or (c), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.
6.02 Authorization; No Contravention.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, including TRM's obligation to issue the
Warrants, the reservation for issuance and the issuance of the Warrant Shares
issuable upon exercise thereof, have been duly authorized by all necessary
corporate or other organizational action, and do not (a) contravene the terms of
any of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law (including, without limitation, Regulation U or
Regulation X issued by the FRB) or any applicable Law or regulation in any
relevant jurisdiction concerning the giving of financial assistance by any Loan
Party for the acquisition or subscription of shares in it or concerning the
protection of the shareholders' capital of such Loan Party. Each Loan Party is
in compliance with all Contractual Obligations referred to in clause (b)(i),
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect. Except for the filing of a proxy statement with
the SEC as would be required if TRM seeks shareholder approval pursuant to the
rules of the NASDAQ National Market for the issuance of an aggregate number of
Warrant Shares greater than 19.99% of the number of shares of Common Stock
outstanding immediately prior to the Closing Date, the filings and listings
contemplated by the Registration Rights Agreement, and the filing of instruments
to perfect security interests, none of TRM and its Subsidiaries is required to
obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency or any regulatory or
self-regulatory agency in order for it to execute, deliver or perform any of its
obligations under or contemplated by the Loan Documents in accordance with the
terms hereof or thereof. All consents, authorizations, orders, filings and
registrations that TRM or any of its Subsidiaries is required to obtain as
described in the preceding sentence have been obtained or effected on or prior
to the date of this Agreement. To the Knowledge (as defined below) of TRM, there
are no facts or circumstances that might give rise to any of the foregoing. TRM
and its Subsidiaries are in material compliance with the applicable provisions
of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations
thereunder. The "Knowledge" of TRM means, for purposes of this Section 6.02, the
actual knowledge of any "officer" (as such term is defined in Rule 16a-1 under
the 1934 Act) of TRM or of the principal financial officer of any Subsidiary.
6.03 Governmental Authorization; Other Consents.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the
43
execution, delivery or performance by, or enforcement against, any Loan Party of
this Agreement or any other Loan Document other than (i) those that have already
been obtained and are in full force and effect and (ii) filings to perfect the
Liens created by the Collateral Documents.
6.04 Binding Effect.
Each Loan Document has been duly executed and delivered by each Loan Party
that is party thereto. Each Loan Document constitutes a legal, valid and binding
obligation of each Loan Party that is party thereto, enforceable against each
such Loan Party in accordance with its terms except as enforceability may be
limited by applicable Debtor Relief Laws or by equitable principals relating to
enforceability.
6.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly presented the financial condition
of TRM and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) showed all material indebtedness and other liabilities,
direct or contingent, of TRM and its Subsidiaries as of the date thereof,
including liabilities for taxes, commitments and Indebtedness.
(b) The Interim Financial Statements (as defined in the Existing Loan
Agreement) (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; (ii) fairly presented the financial condition of TRM and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments; and (iii) showed
all material indebtedness and other liabilities, direct or contingent, of TRM
and its Subsidiaries as of the date thereof, including liabilities for taxes,
material commitments and Indebtedness.
(c) Other than with respect to forecasts or financial projections contained
therein (which forecasts and projections shall be prepared based on reasonable
assumptions consistently applied), the Pro Forma Financial Statements (as
defined in the Existing Loan Agreement) (a) fairly presented in all material
respects the consolidated pro forma financial condition of TRM and its
Subsidiaries as at such date and the consolidated pro forma results of
operations of TRM and its Subsidiaries for the period ended on such date (and
the financial statements utilized in preparing such pro forma statements were
prepared in accordance with GAAP) and (b) were prepared in accordance in all
material respects with the requirements of Regulation S-X under the Securities
Act of 1933, as amended, applicable to a Registration Statement under such Act
on Form S-1.
(d) From the date of the Audited Financial Statements to and including the
Closing Date, there has been no Disposition by TRM or any Subsidiary (other than
the sale by TRM of TRM Copy Centres (U.K.) Limited pursuant to and in accordance
with the terms of that certain Sale Purchase Agreement for the shares of TRM
Photocopy Centres (U.K.) Limited by and between TRM Copy Centers (USA)
Corporation, an Oregon Corporation and Digital 4 Convenience PLC incorporated
and registered in England and Wales), or any Involuntary Disposition, of any
material part of the business or Property of TRM and its Subsidiaries, taken as
a whole, and no purchase or other acquisition by any of them of any business or
property (including any Equity Interests of any other Person) material in
relation to the consolidated financial condition of TRM and its Subsidiaries,
taken as a whole, in each case, which is not reflected in the foregoing
financial statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lenders on or prior to the Closing Date.
44
(e) The financial statements delivered pursuant to Section 7.01(a) and (b)
after the Original Closing Date have been prepared in accordance with GAAP
(except as may otherwise be permitted under Section 7.01(a) and (b)) and present
fairly (on the basis disclosed in the footnotes to such financial statements)
the consolidated and, in the case of annual financial statements delivered
pursuant to Section 7.01(a), consolidating, financial condition, results of
operations and cash flows of TRM and its Subsidiaries as of the dates thereof
and for the periods covered thereby.
(f) Other than those matters set forth on Schedule 5.01(d), since the date
of the Audited Financial Statements, there has been no event or circumstance
that has had or could reasonably be expected to have a Material Adverse Effect.
6.06 Litigation.
There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Loan Parties after due inquiry, threatened or contemplated,
at law, in equity, in arbitration or before any Governmental Authority, by or
against any Loan Party or against any of their properties or revenues that (a)
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby or (b) if determined adversely,
could reasonably be expected to have a Material Adverse Effect.
6.07 No Default.
(a) No Loan Party is in default under or with respect to any Contractual
Obligation that could reasonably be expected to have a Material Adverse Effect,
except any such defaults as are cured by or in connection with the waiver of the
Existing Events of Default.
(b) No Default has occurred and is continuing.
6.08 Ownership of Property; Liens.
Each Loan Party has good record and marketable title in fee simple to, or
valid leasehold interests in, all real property necessary or used in the
ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of each Loan Party is subject to no Liens, other
than Permitted Liens.
6.09 Environmental Compliance.
Except as could not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the Facilities and all operations at the Facilities are in
compliance with all applicable Environmental Laws, and there is no
violation of any Environmental Law with respect to the Facilities or the
Businesses, and there are no conditions relating to the Facilities or the
Businesses that could give rise to liability under any applicable
Environmental Laws.
(b) None of the Facilities contains, or has previously contained, any
Hazardous Materials at, on or under the Facilities in amounts or
concentrations that constitute or constituted a violation of, or could give
rise to liability under, Environmental Laws.
(c) No Loan Party has received any written or verbal notice of, or
inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or
45
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Facilities or the Businesses,
nor does any Responsible Officer of any Loan Party have knowledge or reason
to believe that any such notice will be received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from
the Facilities, or generated, treated, stored or disposed of at, on or
under any of the Facilities or any other location, in each case by or on
behalf any Loan Party in violation of, or in a manner that would be
reasonably likely to give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Responsible Officers of the Loan
Parties, threatened, under any Environmental Law to which any Loan Party is
or will be named as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental
Law with respect to any Borrower, any Subsidiary, the Facilities or the
Businesses.
(f) There has been no release or threat of release of Hazardous
Materials at or from the Facilities, or arising from or related to the
operations (including, without limitation, disposal) of any Loan Party in
connection with the Facilities or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws.
6.10 Insurance.
Except as has been disclosed to and accepted by the Administrative Agent,
the properties of each Loan Party are insured with financially sound and
reputable insurance companies not Affiliates of TRM, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
such Loan Party operates. The insurance coverage of the Loan Parties as in
effect on the Closing Date is outlined as to carrier, policy number, expiration
date, type, amount and deductibles on Schedule 6.10.
6.11 Taxes.
Each Loan Party has filed all federal and other material tax returns and
reports required to be filed, and have paid all federal and other material
taxes, assessments, fees and other governmental charges levied or imposed upon
them or their properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against any Borrower
or Guarantor that would, if made, have a Material Adverse Effect. Neither any
Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.
6.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Loan Parties, nothing has occurred which would prevent, or
cause the loss of, such qualification. Each Loan Party and each ERISA Affiliate
have made all required contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
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(b) There are no pending or, to the best knowledge of the Loan Parties,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Loan Party or
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party or any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) no Loan Party or any ERISA Affiliate
has engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
6.13 Subsidiaries.
(a) Set forth on Schedule 6.13 is a complete and accurate list as of the
Closing Date of each Subsidiary of each Loan Party, together with (i)
jurisdiction of formation, (ii) number of shares of each class of Equity
Interests outstanding, (iii) number and percentage of outstanding shares of each
class owned (directly or indirectly) by any Borrower or any Guarantor and (iv)
number and effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and all other similar rights with respect thereto. The
outstanding Equity Interests of each Subsidiary are validly issued, fully paid
and non-assessable.
(b) None of S-3 Corporation, a Delaware corporation and Wholly Owned
Subsidiary of TRM ATM ("S-3"), Strategic Software Solutions Limited, a company
organized under the laws of England and Wales and a Wholly Owned Subsidiary of
S-3 ("SSS"), TRM Services Limited, (Company No. 05542372), a company organized
under the laws of England and Wales, or FPC (France) Ltd. (collectively, the
"Dormant Subsidiaries") have any assets (other than the equity interests of SSS,
in the case of S-3), liabilities or employees, and none of such Persons conducts
any business or generates any revenues.
6.14 Margin Regulations; Investment Company Act.
(a) No Borrower is engaged nor will it engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock. Following the application of
the proceeds of each Borrowing, not more than 25% of the value of the assets
(either of the applicable Borrower only or of TRM and its Subsidiaries on a
consolidated basis) subject to the provisions of Section 8.01 or Section 8.05 or
subject to any restriction contained in any agreement or instrument between a
Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness
and within the scope of Section 9.01(e) will be margin stock (as defined in
Regulation U).
(b) No Borrower and no Person Controlling any Borrower, or any Subsidiary
is or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
6.15 Disclosure; Material Contracts.
(a) Each Loan Party has disclosed to the Administrative Agent and the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. No report, financial statement, certificate or
other information
47
furnished (whether in writing or orally) by or on behalf of any Loan Party to
the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
or under any other Loan Document (in each case, as modified or supplemented by
other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Loan Parties
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
(B) Schedule 6.15 contains a true, correct and complete list of all the
Material Contracts in effect on the Closing Date, and except as described
thereon, all such Material Contracts are in full force and effect and no
defaults currently exist thereunder. Borrowers shall update and supplement
Schedule 6.15 with the delivery of each Compliance Certificate pursuant to
Section 7.02(b) hereof.
6.16 Compliance with Laws.
Each Loan Party is in compliance with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith could not reasonably
be expected to have a Material Adverse Effect. Administrative Agent and Lenders
have been advised by Borrowers that with respect to its quarterly report on Form
10-Q for the quarter ended September 30, 2006, Borrowers will either make a
non-compliant filing with the SEC (the "Non-Compliant 10-Q Filing") or will make
a late filing with the SEC (the "Delayed 10-Q Filing"). As a result thereof, TRM
expects to receive a notice of delisting from the NASDAQ exchange (the
"Exchange") for failure to maintain required listing standards. TRM shall file a
compliant 10-Q with the SEC within 90 days of the date hereof or otherwise cause
the Exchange to rescind any notice of delisting.
6.17 Intellectual Property; Licenses, Etc.
Each Loan Party owns, or possess the legal right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively, "IP
Rights") that are reasonably necessary for the operation of its respective
business. Set forth on Schedule 6.17 is a list of all IP Rights registered or
pending registration with the United States Copyright Office and/or the United
States Patent and Trademark Office and owned by each Loan Party as of the
Closing Date. Except for such claims and infringements that could not reasonably
be expected to have a Material Adverse Effect, no claim has been asserted and is
pending by any Person challenging or questioning the use of any IP Rights or the
validity or effectiveness of any IP Rights, nor does any Loan Party know of any
such claim, and, to the knowledge of the Responsible Officers of the Loan
Parties, the use of any IP Rights by any Borrower or any Subsidiary or the
granting of a right or a license in respect of any IP Rights from any Borrower
or any Subsidiary does not infringe on the rights of any Person. As of the
Closing Date, none of the IP Rights owned by any of the Loan Parties is subject
to any licensing agreement or similar arrangement except as set forth on
Schedule 6.17.
6.18 Solvency.
The Borrowers are Solvent on a consolidated basis. The Loan Parties are
Solvent on a consolidated basis.
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6.19 Perfection of Security Interests in the Collateral.
The Collateral Documents create valid security interests in, and Liens on,
the Collateral purported to be covered thereby, which security interests and
Liens are currently perfected security interests and Liens, prior to all other
Liens other than Permitted Liens.
6.20 Business Locations.
Set forth on Schedule 6.20(a) is a list of all real property that is owned
or leased by the Loan Parties as of the Closing Date other than self storage
facilities leased by a Loan Party and with respect to which (i) the monthly
rental is not more than $500 and (ii) not more than $50,000 of ATM's,
photocopiers or other Property (measured as the higher of fair market value or
book value) is stored or maintained at any given time. Set forth on Schedule
6.20(b) is a list of each jurisdiction where there are at least 50 ATMs or 600
photocopiers as of the Closing Date. Set forth on Schedule 6.20(c) is the chief
executive office, tax payer identification number and organizational
identification number of each Loan Party as of the Closing Date. The exact legal
name and state of organization of each Loan Party is as set forth on the
signature pages hereto. Except as set forth on Schedule 6.20(d), no Loan Party
has during the five years preceding the Closing Date (i) changed its legal name,
(ii) changed its state of formation, or (iii) been party to a merger,
consolidation or other change in structure.
6.21 Labor Matters.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of any Borrower, any Guarantor or any other Subsidiary as
of the Closing Date and no Borrower nor any Subsidiary has suffered any strikes,
walkouts, work stoppages or other material labor difficulty within the last five
years.
6.22 Issuance of Warrants.
At least 3,072,074 shares of Common Stock (subject to adjustment pursuant
to TRM's covenant set forth in Section 7.18 below) have been duly authorized and
reserved for issuance upon exercise of the Warrants. Upon exercise in accordance
with the Warrants, the Warrant Shares will be validly issued, fully paid and
non-assessable and free from all taxes and Liens with respect to the issue
thereof, with the holders being entitled to all rights accorded to a holder of
Common Stock. Based in part on the representations of Lenders set forth in
Section 6 of the Warrant Agreement, the issuance by TRM of the Warrants is
exempt from registration under the 1933 Act and applicable state securities
laws.
6.23 SEC Documents; Financial Statements.
Since June 30, 2006, and except for the Non Compliant 10-Q Filing or the
Delayed 10-Q Filing, TRM has filed all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant to the
reporting requirements of the 1934 Act (all of the foregoing filed prior to the
date this representation is made (including all exhibits included therein and
financial statements and schedules thereto and documents incorporated by
reference therein) being hereinafter referred to as the "SEC Documents"). TRM
has made available to the Lenders or their respective representatives true and
complete copies of the SEC Documents. Except for the Non Compliant 10-Q Filing
or the Delayed 10-Q Filing, each of the SEC Documents was filed with the SEC
within the time frames prescribed by the SEC for the filing of such SEC
Documents (including any extensions of such time frames permitted by Rule 12b-25
under the 1934 Act) such that each filing was timely filed (or deemed timely
filed pursuant to Rule 12b-25 under the 1934 Act) with the SEC. Except for the
Non Compliant 10-Q Filing or the Delayed 10-Q Filing, as of their respective
dates, the SEC Documents complied in all material respects
49
with the requirements of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents. None of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. Except for the Non
Compliant 10-Q Filing or the Delayed 10-Q Filing, as of their respective dates,
the consolidated financial statements of TRM and its Subsidiaries included in
the SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto. Such consolidated financial statements have been prepared in
accordance with generally accepted accounting principles, consistently applied,
during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto, or (ii) in the case of un-audited
interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present in all material respects the financial
position of TRM and its Subsidiaries as of the dates thereof and the results of
their operations and cash flows for the periods then ended (subject, in the case
of un-audited statements, to normal year-end audit adjustments). None of TRM and
its Subsidiaries, or any of their respective officers, directors or Affiliates
or, to TRM's Knowledge, any shareholder of TRM has made any other filing with
the SEC, issued any press release or made any other public statement or
communication on behalf of TRM or any of its Subsidiaries or otherwise relating
to TRM or any of its subsidiaries that contains any untrue statement of a
material fact or omits any statement of material fact necessary in order to make
the statements therein, in the light of the circumstances under which they are
or were made, not misleading or has provided any other information to the
Lenders, that, considered in the aggregate, contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are or
were made, not misleading. TRM is not required to file and will not be required
to file any agreement, note, lease, mortgage, deed or other instrument entered
into prior to the date this representation is made and in effect on the date
this representation is made and to which TRM or any Subsidiary is a party or by
which TRM or any Subsidiary is bound that has not been previously filed as an
exhibit (including by way of incorporation by reference) to its reports filed or
made with the SEC under the 1934 Act. The accounting firm that has expressed its
opinion with respect to the consolidated financial statements included in TRM's
most recently filed annual report on Form 10-K (the "Audit Opinion") is
independent of TRM pursuant to the standards set forth in Rule 2-01 of
Regulation S-X promulgated by the SEC, and such firm was otherwise qualified to
render the Audit Opinion under applicable law and the rules and regulations of
the SEC. There is no transaction, arrangement or other relationship between the
Company and an unconsolidated or other off-balance-sheet entity that is required
to be disclosed by the Company in its reports pursuant to the 1934 Act that has
not been so disclosed in the SEC Documents.
6.24 Acknowledgment Regarding Lenders' Purchase of Warrants.
TRM and the other Loan Parties acknowledge and agree that each of the
Lenders is acting solely in the capacity of an arm's length purchaser with
respect to TRM in connection with the Loan Documents and the transactions
contemplated hereby and thereby. Each of the Loan Parties further acknowledges
that each Lender is not acting as a financial advisor or fiduciary of TRM (or in
any similar capacity) with respect to the Loan Documents and the transactions
contemplated hereby and thereby, and any advice given by any of the Lenders or
any of their respective representatives or agents in connection with the Loan
Documents and the transactions contemplated hereby and thereby is merely
incidental to such Lender's purchase of the Warrants. The Loan Parties further
represent to each Lender that the Loan Parties' decisions to enter into the Loan
Documents has been based solely on the independent evaluation by the Loan
Parties and their respective representatives.
6.25 No General Solicitation.
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Neither TRM, nor any of its Affiliates, nor any person acting on its or
their behalf, has engaged or will engage in any form of general solicitation or
general advertising (within the meaning of Regulation D under the 1933 Act) in
connection with the offer or sale of the Warrants.
6.26 No Integrated Offering.
Neither TRM, nor any of its Affiliates, nor any person acting on its or
their behalf has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under circumstances that
would require registration of any of the Warrants under the 1933 Act or cause
this offering of the Warrants to be integrated with prior offerings by TRM for
purposes of the 1933 Act or any applicable shareholder approval provisions of
the Principal Market or any other authority, nor will TRM or any of its
Subsidiaries take any action or steps that would require registration of the
issuance of any of the Warrants under the 1933 Act or cause the offering of the
Warrants to be integrated with other offerings for purposes of the 1933 Act or
any applicable shareholder provision of the Principal Market or any other
authority.
6.26 Dilutive Effect.
TRM understands and acknowledges that the number of Warrant Shares issuable
upon exercise of the Warrants will increase in certain circumstances. TRM
further acknowledges that its obligation to issue the Warrant Shares upon
exercise of the Warrants in accordance with this Agreement and the Warrants is,
in each case, absolute and unconditional regardless of the dilutive effect that
such issuance may have on the ownership interests of other shareholders of TRM.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied (other than
indemnification obligations for which no claim ahs been made) or, with respect
to Sections 7.15 and 7.17 through 7.21, as long as any Warrants remain
outstanding, each Loan Party shall and shall cause each Subsidiary to:
7.01 Financial Statements.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within ninety days after
the end of each fiscal year of TRM, a consolidated and consolidating
balance sheet of TRM and its Subsidiaries as at the end of such fiscal
year, and the related consolidated and consolidating statements of income
or operations, shareholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of PricewaterhouseCoopers
LLP, another independent certified public accounting firm of nationally
recognized standing or an independent certified public accounting firm
otherwise reasonably acceptable to the Required Lenders, which report and
opinion shall be prepared in accordance with generally accepted auditing
standards and, other than with respect to Borrowers' fiscal year ended
[December 31, 2006], shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the
scope of such audit; and
51
(b) as soon as available, but in any event within thirty days after
the end of each month, un-audited monthly balance sheets, income statements
and cash flow statements (in the same form as delivered pursuant to clause
(c) below) and a report setting forth certain operational metrics in the
form and with the degree of specificity set forth in Exhibit 7.01(b)
attached hereto.
(c) as soon as available, but in any event within forty-five days
after the end of each of the first three fiscal quarters of each fiscal
year of TRM, a consolidated and consolidating balance sheet of TRM and its
Subsidiaries as at the end of such fiscal quarter, and the related
consolidated and consolidating statements of income or operations,
shareholders' equity and cash flows for such fiscal quarter and for the
portion of TRM's fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail and certified by a Responsible Officer of
TRM as fairly presenting the financial condition, results of operations,
shareholders' equity and cash flows of TRM and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and
the absence of footnotes.
(d) as soon as available, but in any event, on or before 3:00 p.m. New
York time on the second Business Day of each week, a Cash Flow Forecast for
the thirteen (13) week period beginning on the following Monday.
As to any information contained in materials furnished pursuant to Section
7.02(d), TRM shall not be separately required to furnish such information
under clause (a) or (b) above, but the foregoing shall not be in derogation
of the obligation of TRM to furnish the information and materials described
in clauses (a) and (b) above at the times specified therein.
7.02 Certificates; Other Information.
Deliver to the Administrative Agent and each Lender, in form and detail
reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default in respect of Section 8.11 or, if any such Default shall exist,
stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (c), a duly completed Compliance
Certificate signed by a Responsible Officer of Borrower Representative on
behalf of all the Borrowers;
(c) not later than 90 days after the end of each fiscal year of TRM,
beginning with the fiscal year ending December 31, 2006, (i) an annual
business plan and budget of TRM and its Subsidiaries containing, among
other things, pro forma financial statements for each quarter of the next
fiscal year and a budget for each month of such year detailing key business
drivers and assumptions, and (ii) an Excess Cash Flow Certificate in
substantially the form of Exhibit 7.02(c) hereto.
(d) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (c), a certificate of a Responsible
Officer of Borrower Representative containing information regarding the
amount of all Dispositions (other than Permitted Transfers),
52
Involuntary Dispositions, Equity Issuances, Debt Issuances and Acquisitions
that occurred during the period covered by such financial statements with
respect to any Loan Party.
(e) promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee
of the board of directors) of TRM by independent accountants in connection
with the accounts or books of TRM or any Subsidiary, or any audit of any of
them;
(f) promptly after the furnishing thereof, copies of any statement or
report furnished to any holder of debt securities of any Loan Party or any
Subsidiary thereof pursuant to the terms of any indenture, loan or credit
or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;
(g) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each notice
or other correspondence received from the SEC (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof;
(h) promptly, such additional information regarding the business,
financial or corporate affairs of any Loan Party, or compliance with the
terms of the Loan Documents, as the Administrative Agent or any Lender may
from time to time reasonably request; and
(i) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a certificate of a Responsible
Officer of Borrower Representative (i) listing (A) all applications, if
any, for Copyrights, Patents or Trademarks (each such term as defined in
the Security Agreement) made since the date of the prior certificate (or,
in the case of the first such certificate, the Closing Date) by or behalf
of any Loan Party, (B) all issuances of registrations or letters on
existing applications for Copyrights, Patents and Trademarks (each such
term as defined in the Security Agreement) received since the date of the
prior certificate (or, in the case of the first such certificate, the
Closing Date) with respect to any Loan Party, and (C) all Trademark
Licenses, Copyright Licenses and Patent Licenses (each such term as defined
in the Security Agreement) entered into by any Borrower or Subsidiary since
the date of the prior certificate (or, in the case of the first such
certificate, the Closing Date), and (ii) attaching the insurance binder or
other evidence of insurance for any insurance coverage of each Borrower or
any Subsidiary that was renewed, replaced or modified during the period
covered by such financial statements.
Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which TRM
posts such documents, or provides a link thereto on TRM's website on the
Internet at the website address listed on Schedule 11.02; or (ii) on which such
documents are posted on TRM's behalf on an Internet or intranet website, if any,
to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) TRM shall deliver paper copies of such documents to
the Administrative Agent or any Lender that requests TRM to deliver such paper
copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) TRM shall notify the Administrative
Agent and each Lender (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance TRM shall be required to provide
paper copies of the Compliance Certificates required by Section 7.02(b) to the
Administrative Agent. Except
53
for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by Borrower Representative with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
7.03 Notices.
(a) Promptly (and in any event, within two Business Days) notify the
Administrative Agent and each Lender of the occurrence of any Default.
(b) Promptly notify the Administrative Agent and each Lender of any matter
that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default
under, a Contractual Obligation of any Borrower or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between a Borrower
or any Subsidiary and any Governmental Authority; or (iii) the commencement of,
or any material development in, any litigation or proceeding affecting any
Borrower or any Subsidiary, including pursuant to any applicable Environmental
Laws.
(c) Promptly notify the Administrative Agent and each Lender of the
occurrence of any ERISA Event.
(d) Promptly notify the Administrative Agent and each Lender of any
material change in accounting policies or financial reporting practices by TRM,
any other Borrower or any Subsidiary.
Each notice pursuant to this Section 7.03(a) through (d) shall be
accompanied by a statement of a Responsible Officer of Borrower Representative
setting forth details of the occurrence referred to therein and stating what
action TRM or the applicable Borrower has taken and proposes to take with
respect thereto. Each notice pursuant to Section 7.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.
7.04 Payment of Obligations.
Pay and discharge, as the same shall become due and payable, all its
obligations and liabilities, including (a) all material tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the applicable Borrower or such Subsidiary; and (b) all
lawful claims which, if unpaid, would by law become a Lien (other than a
Permitted Lien) upon its property.
7.05 Preservation of Existence, Etc.
(a) Except with respect to the Dormant Subsidiaries, preserve, renew and
maintain in full force and effect its legal existence under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section
8.04 or 8.05.
(b) To the extent that the concept of good standing exists in the
applicable jurisdiction, preserve, renew and maintain in full force and effect
its good standing under the Laws of the jurisdiction of its organization, except
to the extent the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
54
(c) Take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of its
business, except to the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(d) Preserve or renew all of its material registered patents, copyrights,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
7.06 Maintenance of Properties.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted.
(b) Make all necessary repairs thereto and renewals and replacements
thereof, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
(c) Use the standard of care typical in the industry in the operation and
maintenance of its facilities.
7.07 Maintenance of Insurance.
Maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) with financially sound and reputable insurance companies
not Affiliates of TRM, in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where each Borrower or the applicable
Subsidiary operates. The Administrative Agent shall be named as loss payee or
mortgagee, as its interest may appear, and/or additional insured with respect to
any such insurance providing coverage in respect of any Collateral, and each
provider of any such insurance shall agree, by endorsement upon the policy or
policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give the Administrative Agent thirty (30)
days prior written notice before any such policy or policies shall be altered or
canceled.
7.08 Compliance with Laws.
Comply with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its business or property, except in such
instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently
conducted; or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
7.09 Books and Records.
(a) Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of a
Borrower or such Subsidiary, as the case may be.
(b) Maintain such books of record and account in material conformity with
all applicable requirements of any Governmental Authority having regulatory
jurisdiction over any Borrower or such Subsidiary, as the case may be.
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7.10 Inspection Rights.
(a) Permit representatives and independent contractors of the
Administrative Agent and each Lender, upon two Business Day's prior notice, to
visit and inspect any of its properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, all at the expense of the Borrowers and at such
reasonable times during normal business hours and as often as may be reasonably
desired; provided, however, that (i) if no Event of Default exists, the
Borrowers shall not be required to pay the expenses of more than two (2) such
inspection/examination during any calendar year and there shall be no more than
three such inspections or examinations during any calendar year unless Required
Lenders, in their good faith judgment, believe that there has been a material
adverse change in the business or assets of a Borrower or Subsidiary, and (ii)
when an Event of Default exists the Administrative Agent or any Lender (or any
of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrowers at any time during normal business
hours and without advance notice.
(b) If a Default exists and if requested by the Administrative Agent in its
sole discretion, permit the Administrative Agent, and its representatives, upon
reasonable advance notice to Borrower Representative, to conduct an annual audit
of the Collateral at the expense of the Borrowers.
(c) If a Default exists and if requested by the Administrative Agent in its
sole discretion, promptly deliver to the Administrative Agent (a) asset
appraisal reports with respect to all of the real and personal property owned by
any Borrower and its Subsidiaries, and (b) a written audit of the accounts
receivable, inventory, payables, controls and systems of any Borrower and its
Subsidiaries.
7.11 Use of Proceeds.
Borrowers represent and acknowledge that the proceeds of the Original Term
Loan were used by Borrowers to refinance certain Indebtedness (including letters
of credit) existing under that certain Credit Agreement dated as of November 19,
2004 by and among TRM, TRM Ltd, Bank of America, N.A. and the other Lenders a
party thereto and in no event were the proceeds of the Loans used in
contravention of any Law or of any Loan Document.
7.12 Additional Subsidiaries.
Within thirty (30) days (or such longer period as the Administrative Agent
shall permit in its discretion) after the acquisition or formation of any
Subsidiary:
(a) notify the Administrative Agent thereof in writing, together with
the (i) jurisdiction of formation, (ii) number of shares of each class of
Equity Interests outstanding, (iii) number and percentage of outstanding
shares of each class owned (directly or indirectly) by any Loan Party and
(iv) number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and all other similar rights with respect
thereto; and
(b) if such Subsidiary is a Domestic Subsidiary, cause such Person to
(i) become a Guarantor by executing and delivering to the Administrative
Agent a Joinder Agreement or such other documents as the Administrative
Agent shall reasonably deem appropriate for such purpose, and (ii) deliver
to the Administrative Agent documents of the types referred to in Sections
5.01(f) and (g) and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (a)), all in
form, content and scope reasonably satisfactory to the Administrative
Agent.
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7.13 ERISA Compliance.
Do, and cause each of its ERISA Affiliates to do, each of the following:
(a) maintain each Plan in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law; (b)
cause each Plan that is qualified under Section 401(a) of the Code to maintain
such qualification; and (c) make all required contributions to any Plan subject
to Section 412 of the Code.
7.14 Pledged Assets.
(a) Equity Interests. To secure the Obligations, the Loan Parties have
caused and will cause: (A) 100% of the issued and outstanding Equity Interests
of each Domestic Subsidiary (within 30 days, or such later time designated in
writing by the Administrative Agent) and (B) 65% (or such greater percentage
that, due to a change in an applicable Law after the date hereof, (1) could not
reasonably be expected to cause the undistributed earnings of such Foreign
Subsidiary as determined for United States federal income tax purposes to be
treated as a deemed dividend to such Foreign Subsidiary's United States parent
and (2) could not reasonably be expected to cause any material adverse tax
consequences) of the issued and outstanding Equity Interests entitled to vote
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued
and outstanding Equity Interests not entitled to vote (within the meaning of
Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by
any Borrower or any of its Domestic Subsidiary (within 60 days, or such later
time designated in writing by the Administrative Agent) to be subject at all
times to a first priority, perfected Lien in favor of the Administrative Agent
pursuant to the terms and conditions of the Collateral Documents, together with
opinions of counsel and any filings and deliveries reasonably necessary in
connection therewith to perfect the security interests therein, all in form and
substance reasonably satisfactory to the Administrative Agent.
(b) Other Property. Each Loan Party have and will mortgage, pledge and
grant a security interest in all of its owned and leased Property (except (a)
Excluded Property and (b) as otherwise set forth in Section 7.14(a) with respect
to Equity Interests of Subsidiaries), within 30 days (or such later time
designated in writing by the Administrative Agent) of the acquisition thereof
(in the case of any such personal property) and within 90 days (or such later
time designated in writing by the Administrative Agent) of the acquisition
thereof (in the case of any such real property), in each case pursuant to such
mortgage instruments, pledge and security agreements, joinder agreements, title
insurance or other documents, together with opinions of counsel and any filings
and deliveries reasonably requested by the Administrative Agent in connection
therewith to perfect the security interests therein, all in form and substance
reasonably satisfactory to the Administrative Agent, with respect to the Loan
Parties, to secure the Obligations.
7.15 Form D and Blue Sky; Reporting Status.
Timely file a Form D with respect to the Warrants as required under
Regulation D and provide a copy thereof to each Lender promptly after such
filing. TRM shall, on or before the Closing Date, take such action as TRM shall
reasonably determine is necessary in order to obtain an exemption for, or to
qualify the Warrants for, sale to the Lenders on the Closing Date pursuant to
this Agreement under applicable securities or "Blue Sky" laws of the states of
the United States, and shall provide evidence of any such action so taken to the
Lenders on or prior to the Closing Date. TRM shall make all filings and reports
relating to the offer and sale of the Warrants required under applicable
securities or "Blue Sky" laws of the states of the United States following the
Closing Date.
Until the date on which no Warrants remain outstanding (the "Reporting
Period"), Timely file all reports required to be filed with the SEC pursuant to
the 1934 Act, and not terminate TRM's status as an
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issuer required to file reports under the 1934 Act even if the 1934 Act or the
rules and regulations thereunder would otherwise permit such termination.
7.16 Dormant Subsidiaries.
Shall not contribute Property to or otherwise Invest in any Dormant
Subsidiary or permit such Dormant Subsidiaries to incur any liabilities or
conduct any business of any nature whatsoever unless Borrowers (i) provide
Administrative Agent with not less than ten Business Day's prior written notice
of the intent to Invest in or conduct business through such Dormant Subsidiary,
(ii) pledge all of the issued and outstanding equity securities of such Dormant
Subsidiary to Administrative Agent pursuant to pledge agreement substantially
similar to those agreements executed in connection with the closing of this
Agreement, and (iii) cause such Dormant Subsidiary to join the Guaranty and to
grant a Lien upon all of its Property in favor of Administrative Agent to secure
its obligations under the Guaranty.
7.17 Financial Information.
Send the following to each Investor (as that term is defined in the
Registration Rights Agreement) during the Reporting Period:
(a) within one (1) day after the filing thereof with the SEC, a copy of its
Annual Reports on Form 10-K, its Quarterly Reports on Form 10-Q, any Current
Reports on Form 8-K and any registration statements (other than on Form S-8) or
amendments filed pursuant to the 1933 Act, unless the foregoing are filed with
the SEC through EDGAR and are immediately available to the public through EDGAR;
(b) on the same day as the release thereof, facsimile copies of all press
releases issued by TRM or any of its Subsidiaries, except to the extent such
release is available through Bloomberg Financial Markets (or any successor
thereto) contemporaneously with such issuance; and
(c) copies of any notices and other information made available or given to
the shareholders of TRM generally, contemporaneously with the making available
or giving thereof to the shareholders.
7.18 Reservation of Shares.
Take all action necessary to at all times have authorized, and reserved for
the purpose of issuance, no less than 110% of the aggregate number of shares of
Common Stock issuable upon exercise of all outstanding Warrants.
7.19 Listing.
Promptly secure the listing of all of the Registrable Securities (as
defined in the Registration Rights Agreement) upon each national securities
exchange and automated quotation system, if any, upon which shares of Common
Stock are then listed (subject to official notice of issuance) and maintain, so
long as any other shares of Common Stock shall be so listed, such listing of all
Registrable Securities from time to time issuable under the terms of the Loan
Documents. TRM shall maintain the Common Stock's listing on the NASDAQ National
Market. Other than in connection with the Non-Compliant 10-Q Filing or the
Delayed 10-Q Filing, neither TRM nor any of its Subsidiaries shall take any
action which would be reasonably expected to result in the delisting or
suspension of the Common Stock on the Principal Market. TRM shall pay all fees
and expenses in connection with satisfying its obligations under this Section
7.19.
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7.20 Disclosure of Transactions and Other Material Information.
Contemporaneous with or prior to the earlier of (i) TRM's first public
announcement of the transactions contemplated hereby and (ii) 8:00 a.m. (New
York City time) on the second (2nd) Business Day following the Closing Date,
file a Form 8-K with the SEC describing the terms of the transactions
contemplated by the Loan Documents and including as exhibits to such Form 8-K
this Agreement (including the schedules hereto, the Form of Warrant and the
Registration Rights Agreement in the form required by the 1934 Act (the
"Announcing Form 8-K"). Unless required by law or a rule of the Principal Market
or consented to by the Lenders, TRM shall not make any public announcement
regarding the transactions contemplated hereby prior to the Closing. TRM shall
not, and shall cause each of its Subsidiaries and its and each of their
respective officers, directors, employees and agents not to, provide any Lender
with any material nonpublic information regarding TRM or any of its Subsidiaries
from and after the filing of the Announcing Form 8-K with the SEC without the
express prior written consent of such Lender. In the event of a breach of the
foregoing covenant by TRM, any of its Subsidiaries, or any of its or their
respective officers, directors, employees and agents, in addition to any other
remedy provided herein or in the Loan Documents, a Lender shall have the right
to make a public disclosure twenty-four (24) hours after notifying TRM in
writing of its intention to do so, in the form of a press release, public
advertisement or otherwise, of such material nonpublic information without the
prior approval by TRM, its Subsidiaries, or any of its or their respective
officers, directors, employees or agents. No Lender shall have any liability to
TRM, its Subsidiaries, or any of its or their respective officers, directors,
employees, shareholders or agents for any such disclosure. Subject to the
foregoing, neither TRM nor any Lender shall issue any press releases or any
other public statements with respect to the transactions contemplated hereby or
disclosing the name of any Lender; provided, however, that TRM shall be
entitled, without the prior approval of any Lender, to make any press release or
other public disclosure with respect to such transactions (i) in substantial
conformity with the Announcing Form 8-K and contemporaneously therewith and (ii)
as is required by applicable law and regulations (provided that each Lender
shall be consulted by TRM in connection with any such press release or other
public disclosure prior to its release and shall be provided with a copy
thereof).
7.21 Shareholder Approval.
In the event that TRM solicits approval by its shareholders of TRM's
issuance of all of the Warrant Shares, as set forth in this Agreement, and the
Warrants, in accordance with the rules and regulations of the Principal Market
(such approval being referred to herein as "Shareholder Approval"), allow each
Term A Lender and a counsel of its choice to review, prior to filing with the
SEC, the proxy statement to be provided by TRM to its shareholders in connection
with soliciting Shareholder Approval, which proxy statement shall not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
7.22 Miscellaneous Assurances.
The Loan Parties will cause all monies collected on account of transactions
utilizing ATMs owned or managed by or otherwise under contract with a Borrower
and located in the United States to be deposited promptly to the "ATM Fee
Settlement Account" maintained in TRM's name at US Bank pursuant to the US Vault
Cash Agreement and then, within three (3) days of the receipt thereof,
transferred from such account to a deposit account maintained with Wells Fargo
and with respect to which Administrative Agent shall have a first priority
perfected security interest ("Borrowers' Operating Account"). Notwithstanding
the foregoing, no less frequently than once every Business Day, the Borrowers
shall transfer all funds accumulated in such ATM Fee Settlement Account (other
than $75,000 which may remain in such account to the extent required by US Bank)
to Borrower's Operating Account.
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Within 30 days of the Closing Date, the Borrowers shall provide evidence
reasonably acceptable to Administrative Agent that US Bank has been irrevocably
instructed to initiate such daily transfers to Borrowers' Operating Account on
an automatic basis without consent or direct of any Loan Party, which written
instructions shall provide that they may not be rescinded, altered or otherwise
modified without the Administrative Agent's prior written consent.
Borrowers represent and warrant that the securities accounts and deposit
accounts listed on Schedule 6 of the Security Agreement are all deposit,
securities or other similar accounts owned or maintained by any Borrower or
Subsidiary in Canada (collectively, the "Canadian Accounts") and that there are
no other accounts in Canada into which any revenue (including payments made to
any Loan Party in connection with the Canadian Vault Cash Agreement) is or will
be deposited, collected or held. Without limiting or qualifying any other
provision of this Agreement, but subject to the limitations set forth below,
Borrowers hereby agree to transfer, or to cause their Affiliates or Subsidiaries
to transfer to Borrowers' Operating Account, funds from time to time on deposit
in any Canadian Account if and to the extent the balance in such Canadian
Accounts shall at any time to exceed 1,000,000 Canadian dollars, in the
aggregate.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied (other than indemnification obligations for which no claim has been
made), no Loan Party shall, nor shall it permit any Subsidiary (for purposes of
this Article VIII only, TRM LTD shall not be deemed a Subsidiary of TRM) to,
directly or indirectly:
8.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the
following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 8.01 and
any renewals or extensions thereof, provided that (i) the Property covered
thereby is not changed, (ii) the amount secured or benefited thereby is not
increased, (iii) the direct or any contingent obligor with respect thereto
is not changed, and (iv) any renewal or extension of the obligations
secured or benefited thereby is permitted by Section 8.03(b);
(c) Liens (other than Liens imposed under ERISA) for taxes,
assessments or governmental charges or levies that either (i) are not yet
due or (ii) do not have priority over the Liens granted to the
Administrative Agent pursuant to the Security Agreement which are being
contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;
(d) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or
pursuant to customary reservations or retentions of title arising in the
ordinary course of business, provided that such Liens secure only amounts
not yet due and payable or, if due and payable, are un-filed and no other
action has been
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taken to enforce the same or are being contested in good faith by
appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds
(other than bonds related to judgments or litigation), performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money (or appeal or
other surety bonds relating to such judgments) not in violation of Section
9.01(h);
(i) Liens securing Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not at any time encumber any Property other
than the Property financed by such Indebtedness, (ii) the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is
lower, of the Property being acquired on the date of acquisition and (iii)
such Liens attach to such Property concurrently with or within ninety days
after the acquisition thereof;
(j) leases or subleases granted to others not interfering in any
material respect with the business of any Borrower or any of its
Subsidiaries;
(k) any interest of title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by this
Agreement;
(l) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 8.02;
(m) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(n) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
(o) Liens of sellers of goods to a Borrower and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price
for such goods and related expenses;
(p) Liens securing the First Lien Indebtedness; and
(q) Liens securing the obligations and Indebtedness arising under the
Vault Cash Agreements.
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8.02 Investments.
Make or hold any Investments, except:
(a) Investments held by a Borrower or such Subsidiary in the form of
cash or Cash Equivalents;
(b) Investments existing as of the Closing Date and set forth in
Schedule 8.02;
(c) Investments in a Borrower or any Domestic Subsidiary that is a
Loan Party (other than in any Dormant Subsidiary, except as otherwise
expressly permitted under Section 7.16 hereof) made after the Closing Date,
exclusive of Investments scheduled on Schedule 8.02, and Investments in
Borrowers and Subsidiaries thereof as existing on the Closing Date;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or
limit loss; and
(e) Guarantees permitted by Section 8.03.
8.03 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrowers and their Subsidiaries set forth in
Schedule 8.03 (and renewals, refinancings and extensions thereof; provided
that (i) the amount of such Indebtedness is not increased at the time of
such refinancing, refunding, renewal or extension except by an amount equal
to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder and (ii) the
terms relating to principal amount, amortization, maturity, collateral (if
any) and subordination (if any), and other material terms taken as a whole,
of any such refinancing, refunding, renewing or extending Indebtedness, and
of any agreement entered into and of any instrument issued in connection
therewith, are no less favorable in any material respect to the Loan
Parties or the Lenders than the terms of any agreement or instrument
governing the Indebtedness being refinanced, refunded, renewed or extended
and the interest rate applicable to any such refinancing, refunding,
renewing or extending Indebtedness does not exceed the then applicable
market interest rate;
(c) intercompany Indebtedness to the extent permitted under Section
8.02;
(d) obligations (contingent or otherwise) of a Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated
with liabilities, commitments, investments, assets, operations or property
held or reasonably anticipated by such Person, or changes in the value of
securities issued by such Person, and not for purposes of speculation or
taking a "market view;" and (ii) such Swap
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Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to
the defaulting party;
(e) purchase money Indebtedness (including obligations in respect of
Capital Leases or Synthetic Leases) hereafter incurred by a Borrower or any
of its Subsidiaries to finance the purchase of fixed assets, and renewals,
refinancings and extensions thereof, provided that (i) the total of all
such Indebtedness for all such Persons taken together shall not exceed an
aggregate principal amount of $3,000,000 at any one time outstanding; (ii)
such Indebtedness when incurred shall not exceed the purchase price of the
asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a
principal amount in excess of the principal balance outstanding thereon at
the time of such refinancing;
(f) other unsecured Indebtedness in an aggregate principal amount at
any one time outstanding not to exceed (i) $100,000 at any time on or prior
to December 31, 2006 and (ii) $250,000 at any time after December 31, 2006;
(g) The UK Indebtedness, the First Lien Indebtedness and Indebtedness
arising under the Vault Cash Agreements, in each case arising under and as
evidenced by the applicable documents as in affect as of the date hereof;
and
(g) Guarantees with respect to Indebtedness permitted under clauses
(a) through (g) of this Section 8.03.
8.04 Fundamental Changes.
Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person; provided that, notwithstanding the foregoing provisions
of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) TRM
may merge or consolidate with any of its Subsidiaries provided that TRM shall be
the continuing or surviving corporation, (b) any Borrower, may merge or
consolidate with any other Borrower (other than TRM) or any of its Subsidiaries
provided that such Borrower shall be the continuing or surviving Person, (b) any
Guarantor may merge or consolidate with any other Guarantor, and (c) any
Subsidiary may dissolve, liquidate or wind up its affairs at any time provided
that such dissolution, liquidation or winding up, as applicable, could not
reasonably be expected to have a Material Adverse Effect.
8.05 Dispositions.
Make any Disposition except:
(a) Permitted Transfers;
(b) other Dispositions so long as (i) not less than 100% of the
consideration paid in connection therewith shall be cash or Cash Equivalents
paid contemporaneous with consummation of the transaction and shall be in an
amount not less than the fair market value of the Property disposed of, (ii)
such transaction does not involve the sale or other disposition of a minority
equity interest in any Subsidiary, (iii) such transaction does not involve a
sale or other disposition of receivables other than receivables owned by or
attributable to other Property concurrently being disposed of in a transaction
otherwise permitted under this Section 8.05, and (iv) the aggregate net book
value of all of the assets sold or otherwise disposed of by the Borrowers and
their Subsidiaries in all such transactions in any fiscal year shall not exceed
$1,000,000;
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(c) any Disposition not included in clauses (a) and (b) above which is
consented to by Required Lenders, which consent may be conditioned as the
Lenders shall reasonably require.
8.06 Restricted Payments.
Declare or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments to the Loan Parties
and any other Person that owns an Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity
Interest in respect of which such Restricted Payment is being made; and
(b) TRM, each other Borrower and each Subsidiary may declare and make
dividend payments or other distributions payable solely in the Equity
Interests of such Person.
8.07 Change in Nature of Business.
Engage in any material line of business substantially different from those
lines of business conducted by Borrowers and their Subsidiaries on the Closing
Date or any business substantially related or incidental thereto.
8.08 Transactions with Affiliates and Insiders.
Enter into or permit to exist any transaction or series of transactions
with any officer, director or Affiliate of such Person other than (a) advances
of working capital to any Loan Party, (b) transfers of cash and assets to any
Loan Party, (c) intercompany transactions expressly permitted by Section 8.02,
Section 8.03, Section 8.04, Section 8.05 or Section 8.06, (d) normal and
reasonable compensation and reimbursement of expenses of officers and directors
and (e) except as otherwise specifically limited in this Agreement, other
transactions which are entered into in the ordinary course of such Person's
business on terms and conditions substantially as favorable to such Person as
would be obtainable by it in a comparable arms-length transaction with a Person
other than an officer, director or Affiliate.
8.09 Burdensome Agreements.
(a) Enter into, or permit to exist, any Contractual Obligation that
encumbers or restricts on the ability of any such Person to (i) pay dividends or
make any other distributions to any Loan Party on its Equity Interests or with
respect to any other interest or participation in, or measured by, its profits,
(ii) pay any Indebtedness or other obligation owed to any Loan Party, (iii) make
loans or advances to any Loan Party, (iv) sell, lease or transfer any of its
Property to any Loan Party, (v) pledge its Property pursuant to the Loan
Documents or any renewals, refinancings, exchanges, refundings or extension
thereof or (vi) act as a Loan Party pursuant to the Loan Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (i)-(v) above) for (1) this
Agreement and the other Loan Documents, (2) any document or instrument governing
Indebtedness incurred pursuant to Section 8.03(e), provided that any such
restriction contained therein relates only to the asset or assets constructed or
acquired in connection therewith, (3) any Permitted Lien or any document or
instrument governing any Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such Permitted
Lien or (4) customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 8.05 pending the
consummation of such sale.
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(b) Enter into, or permit to exist, any Contractual Obligation that
prohibits or otherwise restricts the existence of any Lien upon any of its
Property in favor of the Administrative Agent (for the benefit of the Lenders)
for the purpose of securing the Obligations, whether now owned or hereafter
acquired, or requiring the grant of any security for any obligation if such
Property is given as security for the Obligations, except (i) any document or
instrument governing Indebtedness incurred pursuant to Section 8.03(e), provided
that any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (ii) in connection with any
Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien and (iii) pursuant to customary
restrictions and conditions contained in any agreement relating to the sale of
any Property permitted under Section 8.05, pending the consummation of such
sale.
8.10 Use of Proceeds.
Use the proceeds of the Term Loan, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit to
others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.
8.11 Financial Covenants.
(a) Minimum EBITDA. Permit their Consolidated EBITDA for any calendar
month to be less than the amount set forth below with respect to such
month:
MONTH MIN. EBITDA
- -------------------------------------- -----------
October, 2006 $ 875,000
November, 2006 $ 900,000
December, 2006 $ 900,000
January, 2007 $1,050,000
February, 2007 $1,150,000
March, 2007, and each month thereafter $1,250,000
(b) Reserved.
8.12 Prepayment of Other Indebtedness, Etc.
(a) Amend or modify any of the terms of any Indebtedness of any Borrower or
any Subsidiary (other than Indebtedness arising under the Loan Documents) if
such amendment or modification would add or change any terms in a manner adverse
to such Borrower or any Subsidiary, change the final maturity or average life to
maturity or require any payment to be made sooner than originally scheduled or
increase the interest rate applicable thereto.
(b) Except as expressly permitted by Section 8.03, make (or give any notice
with respect thereto) any mandatory, voluntary or optional payment or prepayment
or redemption or acquisition for value of (including without limitation, by way
of depositing money or securities with the trustee with respect thereto before
due for the purpose of paying when due), refund, refinance or exchange of any
Indebtedness of any Borrower or any Subsidiary (other than Indebtedness arising
under the Loan Documents).
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(c) pay any of the Term B Loan except to the extent expressly permitted by
the terms of this Agreement.
8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and
Form of Entity.
(a) Amend, modify or change its Organization Documents in a manner adverse
to the Lenders.
(b) Change its fiscal year.
(c) Without providing ten (10) days prior written notice to the
Administrative Agent, change its name, state of formation or form of
organization.
8.14 Ownership of Subsidiaries.
Notwithstanding any other provisions of this Agreement to the contrary, (i)
permit any Person (other than a Borrower or any Wholly Owned Subsidiary of a
Borrower) to own any Equity Interests of any Subsidiary of a Borrower, except to
qualify directors where required by applicable law or to satisfy other
requirements of applicable law with respect to the ownership of Equity Interests
of Foreign Subsidiaries or (ii) permit any Subsidiary of any Borrower to issue
or have outstanding any shares of preferred Equity Interests.
8.15 Capital Expenditures.
Permit Consolidated Capital Expenditures in any month to exceed the
amount set forth below with respect to such month.
MONTH MAX. CAP EX
- ----------------------------------------- -----------
October, 2006 $125,000
November, 2006 $200,000
December, 2006 $225,000
January, 2007 $ 75,000
February, 2007, and each month thereafter $175,000
8.16. Reserved.
8.17. Amendments to First Lien Loan Documents and UK Loan Documents.
Each Lender hereby consents to the amendments of the First Lien Loan
Documents and the UK Loan Documents, as described in subsections 5.01(j) and
(k).
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ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. Any Loan Party fails to pay (i) when and as required
to be paid herein, and in the currency required hereunder, any amount of
principal of any Loan, or (ii) within two Business Days after the same
becomes due, any interest on any Loan, or any fee due hereunder, or (iii)
within five days after the same becomes due, any other amount payable
hereunder or under any other Loan Document; or
(b) Specific Covenants. Any Loan Party fails to perform or observe any
term, covenant or agreement contained in any of Section 7.05, 7.10, 7.11,
7.12, 7.14, 7.15 or 7.16 or Article VIII, or the delisting of TRM from the
Exchange at any time; or
(c) Other Defaults. Any Loan Party fails to (X) make timely delivery
of any item contained in any of Sections 7.01, 7.02 or 7.03, when due in
accordance with the terms thereof (except to the extent, if applicable, TRM
obtains an extension or cure period from the SEC with respect to
corresponding delivery deadlines, provided, however, that any such
extension or cure period shall not exceed 15 days beyond the date such
deliveries were otherwise due in accordance with the terms hereof), or (Y)
perform or observe any other covenant or agreement (not specified in
subsection (a) or (b) above) contained in any Loan Document on its part to
be performed or observed and such failure continues for thirty days after
the earlier of (i) a Responsible Officer of any Loan Party becoming aware
of such failure or (ii) notice thereof to Borrower Representative by the
Administrative Agent; or
(d) Representations and Warranties. Any material representation,
warranty, certification or statement of fact made or deemed made by or on
behalf of any Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect
or misleading in any material respect when made or deemed made; or
(e) Cross-Defaults. (i) any "Event of Default" under and as defined in
the First Lien Loan Documents; (ii) any "Default" under and as defined in
the UK Loan Documents; (iii) any default or breach of any of the Vault Cash
Agreements or any Processing Agreement, (iv) without limiting the foregoing
in any manner, any Borrower or any Subsidiary thereof (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or
Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including un-drawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than
$1,000,000, or (B) fails to observe or perform any other agreement or
condition relating to any such Indebtedness or Guarantee or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event occurs, the effect of which default or other event is to
cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to be demanded or
to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity,
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or such Guarantee to become payable or cash collateral in respect thereof
to be demanded; or (v) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which a Borrower or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or
(B) any Termination Event (as so defined) under such Swap Contract as to
which a Borrower or any Subsidiary is an Affected Party (as so defined)
and, in either event, the Swap Termination Value owed by such Borrower or
such Subsidiary as a result thereof is greater than $1,000,000; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
administrative receiver, administrator supervisor, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all
or any material part of its revenues or property; or any receiver,
administrative receiver, administrator supervisor, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of such Person and the appointment
continues un-discharged or un-stayed for sixty calendar days, with respect
to any Borrower or any of its respective Domestic Subsidiaries; or any
proceeding under any Debtor Relief Law relating to any such Person or to
all or any material part of its property is instituted (including the
making of an application, the presentation of a petition, the filing or
service of a notice or the passing of a resolution) with a view to (i) any
Loan Party or any of its Subsidiaries being adjudicated or found insolvent,
(ii) the winding-up, liquidation, rehabilitation, rescue or dissolution of
any Loan Party or any of its Subsidiaries, (iii) any creditors, (iv) the
appointment of a trustee, supervisor receiver, administrator,
administrative receiver, liquidator, administrator or similar officer in
respect of any Loan Party or any of its Subsidiaries or any of its revenues
or assets or any adjudication or appointment is made without the consent of
such Person and continues un-dismissed or un-stayed for sixty calendar
days, with respect to any Borrower or any of its Domestic Subsidiaries; or
(g) Inability to Pay Debts; Attachment. (i) Any Borrower or any
Subsidiary thereof becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, (ii) any writ or
warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is
not released, vacated or fully bonded within thirty days after its issue or
levy or (iii) propose or enters into any composition or other arrangement
for the benefit of its creditors generally or any class of creditors; or
(h) Judgments. There is entered against any Borrower or any Subsidiary
thereof (i) one or more final judgments or orders for the payment of money
in an aggregate amount exceeding $500,000 (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have,
or could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect and, in either case, (A) enforcement proceedings
are commenced by any creditor upon such judgment or order, or (B) there is
a period of thirty consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in
effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of TRM under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of
$2,000,000, or (ii) TRM or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to
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its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $2,000,000; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or
any other Person contests in any manner the validity or enforceability of
any Loan Document; or any Loan Party denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Loss of Access to Cash. For a period of more than five consecutive
days, TRM, any Borrower or any Subsidiaries thereof do not have access to
cash to service at least 80% of their ATM machines (for which they are
required to supply cash) at the present level, regardless of what causes
such loss of access to cash; or
(m) Loss of Material Contracts. Any Material Contract specifically
designated on Schedule 6.15 hereof as being subject to this clause 9.01(m)
shall, at any time, fail to be in full force and effect unless the
Administrative Agent is reasonably satisfied that such contract has been
replaced or superseded by one or more contracts or other agreements of like
tenor, amount and substance between the parties thereto; or
(n) Prevention of Business Affairs. If any Borrower or any Subsidiary
of a Borrower is prohibited, enjoined, restrained, or prevented from
conducting a material portion of its business theretofore conducted by it
by virtue of any casualty, any labor strike, any determination, ruling,
decision, decree or order of any court or regulatory authority of competent
jurisdiction or any other event and such casualty, labor strike,
determination, ruling, decision, decree, order or other event remains
un-stayed and in effect for any period of twenty (20) days; or
(o) Invalid Liens. If the Security Agreement or any other Loan
Document that purports to create a Lien, shall, for any reason, fail or
cease to create a valid and perfected and, except to the extent permitted
by the terms hereof or thereof, first priority Lien on or security interest
in a material portion of the Collateral covered hereby or thereby, except
as a result of a disposition of the applicable Collateral in a transaction
permitted under this Agreement; or
(p) Seizure of Assets. If any material portion of any Borrower's or
any of its Subsidiaries' assets is attached, seized, subjected to a writ or
distress warrant, or is levied upon, or comes into the possession of any
third Person and the same is not discharged before the earlier of 30 days
after the date it first arises or 5 days prior to the date on which such
property or asset is subject to forfeiture by such Borrower or the
applicable Subsidiary.
9.02 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:
(a) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrowers; and
69
(b) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to a Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make or Continue Loans shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, without further act of the Administrative Agent or any Lender; and
provided, further, that upon an Event of Default under subsections 9.01(a) (with
respect to the Term B Loan), (j) and (o) above, Majority Term B Lenders may
declare or require the Administrative Agent to declare the Term B Loan to be
immediately due and payable.
9.03 Application of Funds.
After the exercise of remedies provided for in Section 9.02 (or after the
Loans have automatically become immediately due and payable), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable
under Article III) payable to the Administrative Agent in its capacity as
such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable
to the Term A Lenders, ratably among them in proportion to the amounts
described in this clause Second payable to them;
Third, to pay interest due in respect of all Term A Loans until paid in
full;
Fourth, to pay the outstanding principal balance of the Term A Loan until
the Term A Loan is paid in full;
Fifth, to pay that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable
to the Term B Lenders, ratably among them in proportion to the amounts
described in this clause Fifth payable to them;
Sixth, to pay interest due in respect the Term B Loan until paid in full;
Seventh, to pay the outstanding principal balance of the Term B Loan until
the Term B Loan is paid in full;
Eighth, to pay any other Obligations, and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the applicable Loan Party or as otherwise
required by Law.
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ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authority.
Each of the Lenders hereby irrevocably appoints WFF to act on its behalf as
the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are expressly delegated to the Administrative Agent by
the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent and the Lenders, and neither the Borrowers
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions (other than Section 10.06).
10.02 Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative
Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
any Loan Party or any Subsidiary or other Affiliate thereof as if such Person
were not the Administrative Agent hereunder and without any duty to account
therefor to the Lenders.
10.03 Exculpatory Provisions.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to any Loan Party or any of
its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
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circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by a Borrower, a
Lender.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
10.04 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, that by its
terms must be fulfilled to the satisfaction of a Lender, the Administrative
Agent may presume that such condition is satisfactory to such Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender
prior to the making of such Loan. The Administrative Agent may consult with
legal counsel (who may be counsel for the Loan Parties), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
10.05 Delegation of Duties.
The Administrative Agent may perform any and all of its duties and exercise
its rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
10.06 Resignation of Administrative Agent.
The Administrative Agent may at any time give notice of its resignation to
the Lenders and Borrower Representative. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
Borrower Representative, to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within two (2)
Business Days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders, appoint a
72
successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify Borrower Representative
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by the Borrowers to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 11.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
10.07 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.
10.08 No Other Duties; Etc.
Anything herein to the contrary notwithstanding, none of the bookrunners,
arrangers, syndication agents, documentation agents or co-agents shall have any
powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender hereunder.
10.09 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether
the Administrative Agent shall have made any demand on the applicable Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans and all other
Obligations (other than obligations under Swap Contracts to which the
Administrative Agent is not a party) that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lenders and the Administrative Agent (including any claim for
the reasonable compensation, expenses,
73
disbursements and advances of the Lenders and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and
11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
10.10 Collateral and Guaranty Matters.
The Lenders irrevocably authorize the Administrative Agent, at its option
and in its discretion,
(a) to release any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document (i) upon payment in full of
all Obligations (other than contingent indemnification obligations), (ii)
that is transferred or to be transferred as part of or in connection with
any Disposition permitted hereunder or under any other Loan Document or any
Involuntary Disposition, or (iii) as approved in accordance with Section
11.01;
(b) to subordinate any Lien on any Property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on
such Property that is permitted by Section 8.01(i); and
(c) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of Property, or to
release any Guarantor from its obligations under the Guaranty, pursuant to
this Section 10.10.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by any Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and Borrower Representative or the applicable Loan Party, as the case
may be, and acknowledged by the Administrative Agent, and each such waiver or
consent shall
74
be effective only in the specific instance and for the specific purpose for
which given; provided, further, that
(a) no such amendment, waiver or consent shall:
(i) extend or increase the Commitment of a Lender (or reinstate
any Commitment terminated pursuant to Section 9.02) without the
written consent of such Lender whose Commitment is being extended or
increased (it being understood and agreed that a waiver of any
condition precedent set forth in Section 5.02 or of any Default or a
mandatory reduction in Commitments is not considered an extension or
increase in Commitments of any Lender);
(ii) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal (excluding mandatory
prepayments), interest, fees or other amounts due to the Lenders (or
any of them) or any scheduled or mandatory reduction of the
Commitments hereunder or under any other Loan Document without the
written consent of each Lender entitled to receive such payment or
whose Commitments are to be reduced;
(iii) reduce the principal of, or the rate of interest specified
herein on, any Loan, or (subject to clause (i) of the final proviso to
this Section 11.01) any fees or other amounts payable hereunder or
under any other Loan Document without the written consent of each
Lender entitled to receive such payment of principal, interest, fees
or other amounts; provided, however, that only the consent of the
Required Lenders shall be necessary to (A) amend the definition of
"Default Rate" or to waive any obligation of a Borrower to pay
interest at the Default Rate or (B) subject to clause (b) below, amend
any financial covenant hereunder (or any defined term used therein)
even if the effect of such amendment would be to reduce the rate of
interest on any Loan or to reduce any fee payable hereunder;
(iv) change Section 2.13 or Section 9.03 in a manner that would
alter the pro rata sharing of payments required thereby without the
written consent of each Lender directly affected thereby;
(v) [Reserved];
(vi) change any provision of this Section 11.01(a) or the
definition of "Required Lenders" without the written consent of each
Lender directly affected thereby;
(vii) except in connection with a Disposition permitted under
Section 8.05, release all or substantially all of the Collateral
without the written consent of each Lender whose Obligations are
secured by such Collateral;
(viii) release a Borrower or, except in connection with a merger
or consolidation permitted under Section 8.04 or a Disposition
permitted under Section 8.05, all or substantially all of the
Guarantors, from its or their obligations under the Loan Documents
without the written consent of each Lender whose Obligations are
guarantied by such Guarantors; or
(b) no such amendment, waiver or consent shall, (i) waive any Default
for purposes of Section 5.02(b), (ii) amend, change, waive, discharge or
terminate Sections 9.01 or 8.03 in a manner
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adverse to such Lenders, or (iii) amend, change, waive, discharge or
terminate Section 8.11 (or any defined term used therein) or this Section
11.01(b) unless also signed by Lenders (other than Defaulting Lenders)
holding, in the aggregate, at least a majority of the Outstanding Amount;
or
(c) unless also signed by Lenders (other than Defaulting Lenders)
holding in the aggregate at least a majority of the outstanding Term Loan
(and participations therein), no such amendment, waiver or consent shall
(i) amend, change, waive, discharge or terminate Section 2.05(b)(vii) so as
to alter the manner of application of proceeds of any mandatory prepayment
required by Section 2.05(b)(iii), (iv), (v) or (vi) hereof or (ii) amend,
change, waive, discharge or terminate this Section 11.01(c) (other than to
provide other Term Loan Lenders with proportional rights under this Section
11.01(c)); and
(d) unless also signed by the Administrative Agent, no amendment,
waiver or consent shall affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document;
provided, however, that notwithstanding anything to the contrary herein, (i) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto, (ii) no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender, (iii) each Lender is entitled to
vote as such Lender sees fit on any bankruptcy reorganization plan that affects
the Loans, and each Lender acknowledges that the provisions of Section 1126(c)
of the Bankruptcy Code of the United States supersedes the unanimous consent
provisions set forth herein and (iv) the Required Lenders shall determine
whether or not to allow a Loan Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding and such determination shall be binding on
all of the Lenders.
11.02 Notices and Other Communications; Facsimile Copies.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to Borrower Representative or any other Loan Party, the
Administrative Agent, to the address, telecopier number, electronic mail
address or telephone number specified for such Person on Schedule 11.02;
and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified to Administrative
Agent in writing.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
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(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender, has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent or
Borrower Representative may, in its discretion, agree to accept notices and
other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrowers and the Administrative
Agent may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to Borrower Representative and the
Administrative Agent.
(d) Reliance by Administrative Agent and Lenders. Administrative Agent and
the Lenders shall be entitled to rely, and shall be fully protected in relying,
upon any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, telefacsimile or other electronic method of transmission, telex or
telephone message, statement or other document or conversation believed by it to
be genuine and correct and to have been signed, sent, or made by the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel to any Loan Party or counsel to any Lender), independent accountants and
other experts selected by Administrative Agent. Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless Administrative Agent shall first receive such
advice or concurrence of the Lenders as it deems appropriate. If Administrative
Agent so requests, it shall first be indemnified to its reasonable satisfaction
by the Lenders against any and all liability and expense that may be incurred by
it by reason of taking or continuing to take any such action based on such
advice or concurrence of the Lenders, other than as a result of its own gross
negligence or willful misconduct. Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the requisite
Lenders and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Lenders. The Loan Parties shall indemnify the
Administrative Agent, each Lender and the Related Parties of each of them from
all losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of a Loan Party. All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
(e) Notice of Default or Event of Default. Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default, except with respect to defaults in the payment of principal,
interest, fees, and expenses required to be paid to Administrative Agent for
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the account of the Lenders and, except with respect to Events of Default of
which Administrative Agent has actual knowledge, unless Administrative Agent
shall have received written notice from a Lender or a Loan Party referring to
this Agreement, describing such Default or Event of Default, and stating that
such notice is a "notice of default." Administrative Agent promptly will notify
the Lenders of its receipt of any such notice or of any Event of Default of
which Administrative Agent has actual knowledge. If any Lender obtains actual
knowledge of any Event of Default, such Lender promptly shall notify the other
Lenders and Administrative Agent of such Event of Default. Each Lender shall be
solely responsible for giving any notices to its Participants, if any. Subject
to 11.02(d), Administrative Agent shall take such action with respect to such
Default or Event of Default as may be requested by the Required Lenders in
accordance with Section 9; provided, however, that if an event occurs or a
circumstance exists that materially and imminently threatens the ability of
Administrative Agent and the Lenders to realize upon any material part of the
Collateral, such as, without limitation, fraudulent removal, concealment or
abscondment thereof, destruction (other than to the extent covered by insurance)
or material waste thereof, or failure of Borrowers after reasonable demand to
maintain or reinstate adequate casualty insurance coverage with respect thereto,
Administrative Agent may take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
its commercially reasonable discretion.
11.03 No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.04 Expenses; Indemnity; and Damage Waiver.
(a) Costs and Expenses. The Loan Parties shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender (including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender) in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans. For avoidance
of doubt, the Loan Parties' obligation to pay the amounts described in the
preceding clause (iii) to any Lender (as opposed to the Administrative Agent)
shall be subject to the existence of an Event of Default at the time such
amounts were incurred by such Lender.
(b) Indemnification by the Loan Parties. The Loan Parties shall indemnify
the Administrative Agent (and any sub-agent thereof) and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related reasonable out-of-pocket
expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any
third party or by any Borrower or any other
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Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or the use or proposed use of the proceeds therefrom, (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property owned
or operated by a Loan Party or any of its Subsidiaries, or any Environmental
Liability related in any way to a Loan Party or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory, whether brought by a third party or by a Borrower or any other Loan
Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by a Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if such Borrower or such
other Loan Party has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Loan Parties for any
reason fail to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by them to the Administrative Agent (or any sub-agent
thereof) or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent) or such
Related Party, as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent (or any
such sub-agent) in its capacity as such, or against any Related Party of any of
the foregoing acting for the Administrative Agent (or any such sub-agent) in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, no Loan Party shall assert, and each Loan Party hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or the use of
the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable not later
than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent, the replacement of any Lender, the termination of
the Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
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11.05 Payments Set Aside.
To the extent that any payment by or on behalf of any Loan Party is made to
the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the applicable
Defaulting Lender Rate from time to time in effect, in the applicable currency
of such recovery or payment. The obligations of the Lenders under clause (b) of
the preceding sentence shall survive the payment in full of the Obligations and
the termination of this Agreement.
11.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement and
the other Loan Documents shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns permitted
hereby, except that a Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder or thereunder without the prior written consent
of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b);
provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Loans at the time owing to it or in the case of
an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$1,000,000 unless each of the Administrative Agent otherwise consents (such
consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's Loans and Commitments, and rights and obligations with
respect thereto, assigned; and (iii) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500 and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an loan administrative questionnaire in form and substance reasonably acceptable
to Administrative Agent. Subject to acceptance and recording thereof by the
Administrative Agent
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pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, each Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrowers, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the principal amounts
of the Loans owing to, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be conclusive, and the
Borrowers, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by each of the
Borrowers at any reasonable time and from time to time upon reasonable prior
notice. In addition, at any time that a request for a consent for a material or
substantive change to the Loan Documents is pending, any Lender wishing to
consult with other Lenders in connection therewith may request and receive from
the Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, any Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or a Borrower or any of TRM's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in clauses (i) through (viii) of Section
11.01(a) that affects such Participant. Subject to subsection (e) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) Limitation on Participant Rights. A Participant shall not be entitled
to receive any greater payment under Section 3.01 or 3.04 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with Borrowers' prior written consent. A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless Borrower Representative is notified of
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the participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions Act
11.07 Treatment of Certain Information; Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives,
to any direct or indirect contractual counterparty (or such contractual
counterparty's professional advisor) under any Swap Contract relating to Loans
outstanding under this Agreement (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
a Loan Party and its obligations, (g) with the consent of the Borrowers or (h)
to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent or any Lender, or any of their respective Affiliates on a
non-confidential basis from a source other than the Borrowers and who is not in
breach of any duties of confidentiality.
For purposes of this Section, "Information" means all information received
from a Loan Party or any Subsidiary relating to the Loan Parties or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
non-confidential basis prior to disclosure by such Loan Party or any Subsidiary,
provided that, in the case of information received from a Loan Party or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. For purposes of this Agreement, any
information delivered or obtained by Lenders pursuant to Sections 7.01(b), 7.02
or 7.10 which is not otherwise publicly available shall be deemed confidential
without the identification required by the previous sentence. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same
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degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
11.08 Set-off.
If an Event of Default shall have occurred and be continuing, each Lender
and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender or any such Affiliate to or
for the credit or the account of any Borrower or any other Loan Party against
any and all of the obligations of such Borrower or such Loan Party now or
hereafter existing under this Agreement or any other Loan Document to such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement or any other Loan Document and although such obligations of
such Borrower or such Loan Party may be contingent or unmatured or are owed to a
branch or office of such Lender different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender and their
respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender or their respective
Affiliates may have. Each Lender agrees to notify Borrower Representative and
the Administrative Agent promptly after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of
such setoff and application.
11.09 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrowers. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
11.10 Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
11.11 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the
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execution and delivery hereof and thereof. Such representations and warranties
have been or will be relied upon by the Administrative Agent and each Lender,
regardless of any investigation made by the Administrative Agent or any Lender
or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any Loan,
and shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied.
11.12 Severability.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
11.13 Replacement of Lenders.
(a) By Borrower. If (A) any Lender requests compensation under Section
3.04, (B) a Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
3.01, or (C) any Lender is a Defaulting Lender, then the Borrowers may, at their
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 11.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:
(i) The Borrowers shall have paid to the Administrative Agent the
assignment fee specified in Section 11.06(b);
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or
the applicable Borrower (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such
compensation or payments thereafter; and
(iv) such assignment does not conflict with applicable Laws.
Upon the consummation of such sale and assignment, the applicable
amendment, modification, forbearance and/or waiver giving rise to the option to
acquire such Non-Consenting Lender's interests hereunder shall become effective
upon giving effect to such assignment (and any related assignments required to
be effected in connection therewith in accordance with this Section 11.13).
(b) By Lenders. If any Lender refuses to consent (such Lender a
"Non-Consenting Lender") to an amendment, modification, forbearance and/or
waiver of or under this Agreement, and such Non-Consenting Lender's consent is
otherwise necessary to achieve Required Lender consent hereunder and
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but for such failure to consent, such amendment, modification, forbearance or
waiver would have been effected pursuant to the terms hereof, then any one or
more of the other Lenders may, but shall not be required to purchase and assume
(if more than one, then on a pro rata basis), or to designate some other Person
to purchase, assume and acquire the interests and obligations of the
Non-Consenting Lender hereunder and under the Loan Documents and such
Non-Consenting Lender shall promptly assign, sell and transfer to such other
Lenders, or to any such other Person as designated by such Lenders (such
Lender(s) or other purchaser, an "Assignee") all of its rights, interest and
Obligations hereunder and under the Loan Documents.
Upon the date of such purchase and sale, the Assignee shall pay to the
Non-Consenting Lender as the purchase price for its pro rata share of the
Obligations, the full amount of all Loans and other Obligations then outstanding
and unpaid (including principal, interest, fees and expenses, including
reasonable attorneys' fees and legal expenses) held by or owing to such
Non-Consenting Lender and furnish cash collateral or agree to indemnify such Non
Consenting Lender in respect of indemnification obligations of Borrowers under
the Loan Documents (including reasonable attorneys' fees and legal expenses)
which are identified by the Non-Consenting Lender as being then due and owing or
which have been asserted and are liquidated or are otherwise ascertainable in
amount, but only to the extent not previously indemnified and reimbursed by the
Borrowers and without releasing, or affecting the indemnification obligations of
Borrowers under the Loan Documents or the survival of such provisions in favor
of the Non-Consenting Lender, provided that, in no event will any Lenders or the
Assignee have any liability for amounts described herein in excess of proceeds
of Collateral received by the Lenders. The foregoing purchase price payments
shall be remitted by wire transfer in federal funds to such bank account as the
Non-Consenting Lender may designate in writing to the Assignee for such purpose.
Interest shall be calculated to but excluding the business day on which such
purchase and sale shall occur if the amounts so paid by Assignee to the bank
account designated by the Non-Consenting Lender are received in such bank
account prior to 1:00 p.m., New York City time and interest shall be calculated
to and including such business day if the amounts so paid by the Assignee to the
bank account designated by the Non-Consenting Lender are received in such bank
account later than 1:00 p.m., New York City time. If the Non Consenting Lender
also serves as Administrative Agent hereunder, then notwithstanding any transfer
and sale pursuant to this Section 11.13, such Non-Consenting Lender shall
continue to serve as Administrative Agent unless and until the Required Lenders
shall otherwise determine in accordance with the provisions of this Agreement.
Such purchase and sale shall be expressly made without representation or
warranty of any kind by the Non-Consenting Lender as to the Loans so purchased
or otherwise and without recourse to the Non-Consenting Lender, except that the
Non-Consenting Lender shall represent and warrant to the Assignee and to each
other Lender: (i) the amount of the Loans and other Obligations being purchased
from it, (ii) that such Non-Consenting Lender owns its portion of the Loans and
other Obligations so purchased free and clear of any Liens or encumbrances and
(iii) such Non-Consenting Lender has the right to assign such Loans and other
Obligations and the assignment is duly authorized by such Non-Consenting Lender.
Upon any such assignment and payment and compliance with the other
provisions hereunder, such Non-Consenting Lender shall no longer constitute a
"Lender" for purposes hereof; provided, any rights of such Non-Consenting Lender
to indemnification hereunder shall survive.
(c) A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrowers to require such assignment
and delegation cease to apply.
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11.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. EACH BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY
BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(c) WAIVER OF VENUE. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.15 Waiver of Right to Trial by Jury.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND
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THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
11.16 USA PATRIOT Act Notice.
Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is required to obtain, verify and record information that identifies each
Borrower, which information includes the name and address of such Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.
11.17 Judgment Currency.
If, for the purposes of obtaining judgment in any court, it is necessary to
convert a sum due hereunder or any other Loan Document in one currency into
another currency, the rate of exchange used shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of each Loan Party in respect of any
such sum due from it to the Administrative Agent or the Lenders hereunder or
under the other Loan Documents shall, notwithstanding any judgment in a currency
(the "Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment Currency.
If the amount of the Agreement Currency so purchased is less than the sum
originally due to the Administrative Agent from any Loan Party in the Agreement
Currency, such Loan Party agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Administrative Agent or the Person to whom
such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the
Administrative Agent in such currency, the Administrative Agent agrees to return
the amount of any excess to such Loan Party (or to any other Person who may be
entitled thereto under applicable law).
11.18 Matters Relating to Borrowers' Joint and Several Liability.
(a) Joint and Several Liability of the Borrowers. Each of the Borrowers
shall be jointly and severally liable hereunder and under each of the other Loan
Documents with respect to all Obligations, regardless of which of the Borrowers
actually receives the proceeds of the Loan or the benefit of any other
extensions of credit hereunder, or the manner in which the Borrower
Representative, the Borrowers, the Lenders account therefor in their respective
books and records. In furtherance and not in limitation of the foregoing, (i)
each Borrower's obligations and liabilities with respect to proceeds of Loans
which it receives and (ii) each Borrower's obligations and liabilities arising
as a result of the joint and several liability of the Borrowers hereunder with
respect to proceeds of the Loans received by or for the account of, any of the
other Borrowers, together with the related fees, costs and expenses, shall be
separate and distinct obligations, both of which are primary obligations of such
Borrower. Without limiting the generality of the foregoing in any manner, all
representations and warranties of Borrowers' contained herein are made jointly
and severally. For purposes of the agreements, representations, warranties and
covenants contained in this Agreement and in the other Financing Documents, the
knowledge of one Borrower shall be imputed to all Borrowers (including, without
limitation, the Borrower Representative, and any consent by one Borrower
(including, without limitation, the Borrower Representative) shall
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constitute the consent of and shall bind all Borrowers. Neither the joint and
several liability of, nor the Liens granted to the Administrative Agent under
the Collateral Documents by, any of the Borrowers shall be impaired or released
by
(i) the failure of the Administrative Agent or any Lender, any
successors or assigns thereof, or any holder of any Note or any of the
Obligations to assert any claim or demand or to exercise or enforce any
right, power or remedy against the Borrower Representative, any Borrower,
any Subsidiary of any Borrower, any other Person, the Collateral or
otherwise;
(ii) any extension or renewal for any period (whether or not longer
than the original period) or exchange of any of the Obligations or the
release or compromise of any obligation of any nature of any Person with
respect thereto;
(iii) the surrender, release or exchange of all or any part of any
property (including without limitation the Collateral) securing payment,
performance and/or observance of any of the Obligations or the compromise
or extension or renewal for any period (whether or not longer than the
original period) of any obligations of any nature of any Person with
respect to any such property, or the existence, value or condition of, or
failure to perfect its Lien against, any security for the Obligations or
any action, or the absence of any action, by the Administrative Agent and
Lenders in respect thereof (including the release of any such security);
(iv) any action or inaction on the part of the Administrative Agent or
any Lender, or any other event or condition with respect to any other
Borrower, including any such action or inaction or other event or
condition, which might otherwise constitute a defense available to, or a
discharge of, such Borrower, or a guarantor or surety of or for any or all
of the Obligations;
(v) any other act, matter or thing (other than payment or performance
of the Obligations) which would or might, in the absence of this provision,
operate to release, discharge or otherwise prejudicially affect the
obligations of such or any other Borrower.
(vi) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Agreement, any other Loan Document
or any other agreement, document or instrument to which any Borrower is or
may become a party; or
(vii) the insolvency of any Borrower or any Subsidiary of any
Borrower.
(b) Rights of Contribution. The Borrowers hereby agree as among themselves
that, if any Borrower shall make an Excess Payment (as defined below), such
Borrower shall have a right of contribution from each other Borrower in an
amount equal to such other Borrower's Contribution Share (as defined below) of
such Excess Payment. The payment obligations of any Borrower under this Section
11.18 shall be subordinate and subject in right of payment to the Obligations
until such time as the Obligations have been paid in full in cash and all
Commitments have terminated, and none of the Borrowers shall exercise any right
or remedy under this Section 11.18 against any other Borrower until such time as
all Obligations have been paid in full in cash and all Commitments have been
terminated. For purposes of this Section 11.18, (a) "Excess Payment" shall mean
the amount paid by any Borrower in excess of its Pro Rata Share of any
Obligations; (b) "Pro Rata Share" shall mean, for purposes of this Section 11.18
and for any Borrower in respect of any payment of the Obligations, the ratio
(expressed as a percentage) as of the date of such payment of Obligations of (i)
the amount by which the aggregate present fair salable value of all of its
assets and properties exceeds the amount of all debts and liabilities of such
Borrower (including contingent, subordinated, un-matured, and un-liquidated
liabilities, but excluding the Obligations of such Borrower hereunder) to (ii)
the amount by which the aggregate present
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fair salable value of its assets and other properties of all Borrowers exceeds
the amount of all of the debts and liabilities (including contingent,
subordinated, un-matured, and un-liquidated liabilities, but excluding the
Obligations of all Borrowers hereunder) of the Borrowers; and (c) "Contribution
Share" shall mean, for any Borrower in respect of any Excess Payment made by any
other Borrower, the ratio (expressed as a percentage) as of the date of such
Excess Payment of (i) the amount by which the aggregate present fair salable
value of all of its assets and properties exceeds the amount of all debts and
liabilities of such Borrower (including contingent, subordinated, un-matured,
and un-liquidated liabilities, but excluding the Obligations of such Borrower
hereunder) to (ii) the amount by which the aggregate present fair salable value
of all assets and other properties of the Borrowers other than the maker of such
Excess Payment exceeds the amount of all of the debts and liabilities (including
contingent, subordinated, un-matured, and un-liquidated liabilities, but
excluding the Obligations of the Borrowers) of the Borrowers other than the
maker of such Excess Payment. Nothing in this Section 11.18 shall require any
Borrower to pay its Contribution Share of any Excess Payment in the absence of a
demand therefor by the Borrower that has made the Excess Payment. Without
limiting the foregoing in any manner, it is the intent of the parties hereto
that as of any date of determination, no Contribution Amount of any Borrower
shall be equal to the maximum amount of the claim which could then be recovered
from such Borrower under this Section 11.18 without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) Waivers by Borrowers. Each Borrower expressly waives all rights it may
have now or in the future under any statute, or at common law, or at law or in
equity, or otherwise, to compel the Administrative Agent to marshal assets or to
proceed in respect of the Obligations guaranteed hereunder against any other
Borrower or guarantor of the Obligations, any other party or against any
security for the payment and performance of the Obligations before proceeding
against, or as a condition to proceeding against, such Borrower. It is agreed
among each Borrower and the Lenders that the foregoing waivers are of the
essence of the transaction contemplated by this Agreement and the other Loan
Documents and that, but for the provisions of this Section and such waivers and
the Lenders would decline to enter into this Agreement.
(d) Subordination of Subrogation, Etc. Notwithstanding anything to the
contrary in this Agreement or in any other Loan Document, and except as set
forth in subsection (E) below, each Borrower hereby expressly and irrevocably
subordinates to payment of the Obligations any and all rights at law or in
equity to subrogation, reimbursement, exoneration, contribution, indemnification
or set off and any and all defenses available to a surety, guarantor or
accommodation co-obligor until the Obligations are indefeasibly paid in full in
cash. Each Borrower acknowledges and agrees that this subordination is intended
to benefit the Lenders and shall not limit or otherwise affect such Borrower's
liability hereunder or the enforceability of this Section 11.18, and that each
Lender and the Administrative Agent (on their behalf) and their respective
successors and assigns are intended third party beneficiaries of the waivers and
agreements set forth herein.
(e) Miscellaneous. This Section is intended only to define the relative
rights of the Borrowers and nothing set forth in this Section is intended to or
shall impair the obligations of the Borrowers, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Agreement or any other Loan Document. Nothing contained in this
Section shall limit the liability of any Borrower to pay the Loans made directly
or indirectly to that Borrower and accrued interest, Fees and expenses with
respect thereto for which such Borrower shall be primarily liable. The parties
hereto acknowledge that the rights of contribution and indemnification hereunder
shall constitute assets of the Borrowers to which such contribution and
indemnification is owing. The rights of any indemnified Borrower against the
other Borrowers under this Section shall be exercisable upon the full and
indefeasible payment of the Obligations.
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11.19 Oral Agreements.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY THE
LENDERS AFTER OCTOBER 3, 1989, CONCERNING LOANS AND OTHER CREDIT EXTENSION WHICH
ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION, AND BE SIGNED BY
THE LENDERS TO BE ENFORCEABLE.
11.20 No Novation. Notwithstanding anything to the contrary contained herein,
this Agreement is not intended to and does not serve to effect a novation of the
Obligations under the Existing Loan Agreement. Instead, it is the express
intention of the parties hereto to reaffirm the indebtedness created under the
Existing Loan Agreement which is evidenced by the amended and restated notes
provided for herein and secured by the Collateral. Borrowers, and each other
Loan Party hereby acknowledges and confirms that the liens and security
interests granted pursuant to the Loan Documents secure the indebtedness,
liabilities and obligations of such Persons to Administrative Agent and Lenders
under the Existing Loan Agreement, as amended and restated hereby, and that the
term "Obligations" as used in the Loan Documents (or any other term used therein
to describe or refer to the indebtedness, liabilities and obligations of
Borrowers to Administrative Agent and Lenders) includes, without limitation, the
indebtedness, liabilities and obligations of Borrowers under the Notes to be
delivered under this Agreement, as the same may be further amended, modified,
supplemented or restated from time to time. The Loan Documents and all
agreements, instruments and documents executed or delivered in connection with
any of the foregoing shall each be deemed to be amended to the extent necessary
to give effect to the provisions of this Agreement. Cross-references in the Loan
Documents to particular section numbers in the Existing Loan Agreement shall be
deemed to be cross-references to the corresponding sections, as applicable, of
this Agreement.
11.21 Waiver of Existing Events of Default. Upon satisfaction of the conditions
set forth in Section __ hereof and in reliance upon the representations,
warranties and covenants contained in this Agreement, Administrative Agent and
Lenders hereby waive the Existing Events of Default. This is a limited, one time
waiver and, except as expressly set forth herein, shall not be deemed to: (a)
constitute a waiver of any other Event of Default or any breach of the Existing
Loan Agreement, this Agreement or any of the other Loan Documents, whether now
existing or hereafter arising, (b) constitute a waiver of any of the other
rights or remedies of Administrative Agent or any of the Lenders under the Loan
Documents (all such rights and remedies being expressly reserved by
Administrative Agent and the Lenders) or (c) establish a custom or course of
dealing or conduct between Administrative Agent, any Lender, any Borrower or any
other Loan Party. The foregoing waiver shall not be deemed to constitute a
consent to any act, omission or any breach of this Agreement or any of the other
Loan Documents. Except as expressly set forth herein, nothing contained herein
shall be deemed to constitute a waiver of compliance with any term or condition
contained in this Agreement (other than in connection with the Existing Events
of Default) or any of the other Loan Documents or constitute a course of conduct
or dealing among the parties.
ARTICLE XII
INTERCREDITOR PROVISIONS
12.01 General Assignments. Administrative Agent, Borrowers and each Lender each
hereby acknowledges and agrees that:
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(a) the Obligations include any interest that accrues after the
commencement of any Proceeding or other action relating to the bankruptcy,
insolvency, receivership, reorganization or similar proceeding of any Credit
Party at the rate provided for in the applicable Loan Documents governing the
same, and all indemnities, fees, costs and expenses, whether or not a claim for
post petition interest or for such indemnities, fees, costs and expenses is
allowed or allowable in any such case, proceeding or other action; and
(b) to further effectuate the intent of the parties as provided in Sections
2.05(b)(viii) and 9.03 hereof, each Term B Lender hereby acknowledges and agrees
that, with respect to any proceeds realized from the exercise of any remedies
against the Collateral or otherwise in connection with any Collateral, the Term
A Lenders shall be entitled to receive payment in full, in cash of the
Obligations owing to the Term A Lenders, including all principal, pre-petition
interest and other claims, all amounts owing in respect of post petition
interest at the relevant contract rate (and including, without limitation, all
post petition indemnities, fees, costs and expenses), even though such claims
may or may not be allowed in whole or in part in the respective Proceeding,
before any distribution of such Collateral proceeds is made in respect of the
claims held by the Term B Lenders, and the Term B Lenders shall turn over any
distribution received by any of them with respect to any Collateral to
Administrative Agent for application against the Obligations owing to the Term A
Lenders until such obligations are paid in full in cash.
12.02 Agreements Regarding Bankruptcy.
(a) In the event of the filing of any proceeding under any Debtor Relief
Laws, including without limitation, any case or proceeding of the type described
in subsection 9.01(f) of this Agreement, by or against any Credit Party,
Required Lenders may not vote for or approve any plan, the effect of which is to
increase the amount of the aggregate Obligations owing to the Term A Lenders or
any other obligations that are ahead of the Obligations owing to the Term B
Lenders or which would alter the relative priorities of the application of
payments set forth in Sections 2.05(b)(viii) and 9.03 hereof;
(b) Subject to the limitations set forth in this Agreement and the other
Loan Documents, Administrative Agent shall have the sole and exclusive right to
file proofs of claim and other pleadings and motions with respect to any Term
Loans or the Collateral in any proceeding under any Debtor Relief Laws. If a
proper proof of claim has not been filed in the form required in such Proceeding
at least ten (10) days prior to the expiration of the time for filing thereof,
Administrative Agent shall have the right (but not the duty) to file an
appropriate claim for and on behalf of the Term B Lenders with respect to any of
the Obligations owing to the Term B Lenders. In furtherance of the foregoing,
the Term B Lenders hereby appoint Administrative Agent as their attorney in
fact, with full authority in the place and stead of the Term B Lenders and full
power of substitution and in the name of the Term B Lenders or otherwise, to
execute, fill and deliver any document or instrument that such Administrative
Agent is required or permitted to file or deliver pursuant to this subsection
13.2(b), such appointment being coupled with an interest and irrevocable.
(c) The Obligations owing to the Term A Lenders shall continue to be
treated as Obligations owing to the Term A Lenders and the provisions of
Sections 2.05(b)(viii) and 9.03 of this Agreement shall continue to govern the
relative rights and priorities of the Term A Lenders and the Term B Lenders with
respect to the application of proceeds realized from any Collateral even if all
or part of the Obligations owing to the Term A Lenders or the Liens securing
same are subordinated, set aside, avoided, invalidated or disallowed in
connection with any Proceeding.
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(d) To the extent that any Term A Lender receives payments (whether in
cash, property or securities) on the Obligations owing to the Term A Lenders or
proceeds of the Collateral which are subsequently invalidated, declared to be
fraudulent or preferential transfers, set aside and/or required to be repaid to
a trustee, receiver or any other party under any bankruptcy law, state or
federal law, common law or equitable cause (and whether as a result of any
demand, settlement, litigation or otherwise), then, to the extent of such
payment or proceeds received, the Obligations owing to the Term A Lenders, or
part thereof, intended to be satisfied shall be revived and continue in full
force and effect as if such payments or proceeds had not been received by such
Term A Lender.
(e) Notwithstanding any other provision of this Section 12, but subject to
subsection 12.02(a): (i) the Term B Lenders shall be entitled to file any
necessary responsive or defensive pleadings in opposition to any motion, claim,
adversary proceeding or other pleading made by any Person objecting to or
otherwise seeking the disallowance of the claims of the Term B Lenders,
including without limitation any claims secured by the Collateral, if any, (ii)
the Term B Lenders shall be entitled to file any pleadings, objections, motions
or agreements which assert rights or interests available to unsecured creditors
of any Credit Party arising under either the Bankruptcy Code or applicable non
bankruptcy law, and (iii) the Term B Lenders shall be entitled to file any proof
of claim and other filings and make any arguments and motions that are, in each
case, in accordance with the terms of this Agreement and the other Loan
Documents and necessary to preserve their rights, in accordance with the terms
of this Agreement, with respect to the Obligations owing to the Term B Lenders
and the Collateral; provided that notice of intent to take any such action shall
be given by the Term B Lenders to Administrative Agent not less than the earlier
of: (x) five (5) Business Days prior to the taking of such action and (y) two
(2) Business Days less than the number of days available by order of any
applicable bankruptcy code in which to file a claim.
12.03 Agreements Regarding Specific Enforcement Actions.
(a) Prior to the payment in full, in cash of all Obligations owing to the
Term A Lenders, and except as otherwise expressly set forth in this Agreement,
Term Loan A Lenders shall have the exclusive right to direct Administrative
Agent to enforce the Collateral Documents: (i) by judicial proceedings for the
enforcement of the security interests created under the Collateral Documents;
(ii) by the sale of the Collateral or any part thereof; (iii) otherwise by the
exercise of the power of entry or sale herein conferred or conferred by the
Collateral Documents; or (iv) by taking any other enforcement action against, or
exercising any other remedies with respect to, the Collateral. Upon payment in
full, in cash of all Obligations owing to the Term A Lenders and thereafter, and
at any time following 180 days after the occurrence of an Event of Default that
has not been otherwise waived in accordance with the terms hereof, the Term B
Lenders shall have the exclusive right to direct Administrative Agent with
respect to the powers specified in this Section 12.03.
(b) Each Term B Lender agrees that it will not take any action that would
hinder, delay, limit or prohibit any exercise of remedies under the Loan
Documents to the extent permitted thereunder, including any collection, sale,
lease, exchange, transfer or other disposition of the Collateral, whether by
foreclosure or otherwise.
12.04 Term A Lenders and Term B Lenders; Administrative Agent.
(a) Each Term B Lender agrees that no Term A Lender shall have any
liability to such Term B Lender, and such Term B Lender hereby waives any claims
against any Term A Lender, arising out of any and all actions which any Term A
Lender may take or permit or omit to take with respect to: (i) the Loan
Documents, (ii) the foreclosure upon, or sale, liquidation or other disposition
or realization of, any Collateral or (iii) the collection of the Obligations
owing to the Term A Lenders.
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(b) Each Term B Lender agrees that no Term A Lender shall have any duty,
express or implied, fiduciary or otherwise, to it in respect of the maintenance
or preservation of any Collateral, any Obligations or otherwise. Except as
expressly provided hereunder, no Term A Lender nor any of its respective
directors, officers, employees or agents will be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so, or
will be under any obligation to sell or otherwise dispose of any Collateral upon
the request of any Credit Party, any Term B Lender or any other Person or to
take any other action whatsoever with regard to the Collateral or any part
thereof.
(c) Administrative Agent and each Lender agrees not to, directly or
indirectly, whether in connection with a Proceeding or otherwise, take any
action or vote in any way that would be in violation of, or inconsistent with,
or result in a breach of, this Agreement or any of the other Loan Documents or
challenge or contest: (i) the validity, perfection, priority or enforceability
of any Obligations or the Lien held by Administrative Agent to secure the
payment, performance or observance of all or any part of the Obligations owing
to the Term A Lenders or the Obligations owing to the Term B Lenders, (ii) the
rights of Administrative Agent and Lenders, as the case may be, set forth in any
of the Loan Documents with respect to any such Lien, or (iii) the validity or
enforceability of any of the Loan Documents; provided that nothing in this
Section 12.04 is intended or shall be deemed or construed to limit in any way
the ability of the parties hereto to enforce all of the terms and provisions of
Section 12 or any terms of subordination among any of them.
(d) In the event that any proceeds of Collateral are received by any Term B
Lender at a time when such payment is not expressly permitted by the terms of
this Agreement or any other Loan Document, any such proceeds shall not be
commingled with any of the assets of such Term B Lender, shall be received and
held in trust for the benefit of the Term A Lenders and shall be promptly paid
over to Administrative Agent, for the benefit of the Term A Lenders, or
delivered in the same form as received, with any necessary endorsements or
assignments or as a court of competent jurisdiction may otherwise direct, to the
extent necessary to pay in full in cash all Obligations owing to the Term A
Lenders in accordance with their terms. After the payment in full, in cash, of
all Obligations owing to the Term A Lenders, any remaining proceeds of
Collateral shall be delivered to Administrative Agent for application to the
Obligations owing to the Term B Lenders in accordance with the Loan Documents,
except as otherwise required pursuant to applicable law.
(e) The Term B Lenders hereby authorize Administrative Agent, or any of its
officers or employees, to make any endorsements or assignment (which
authorization, being coupled with an interest, is irrevocable) in the event the
Term B Lenders fail to provide any endorsement or assignment of the type
contemplated by clause (d) above.
(f) Each Term B Lender hereby waives any right to demand, request, plead or
otherwise assert or otherwise claim the benefit of any appraisal, valuation or
other similar rights that may otherwise be available under applicable law with
respect to the Collateral or any other similar rights it may have under
applicable law.
(g) The Term B Lenders hereby acknowledge and agree that, until the payment
in full, in cash, of all Obligations owing to the Term A Lenders, Administrative
Agent, acting on behalf of and at the direction or the Term A Lenders, shall
have the sole and exclusive right to adjust settlement of insurance claims in
the event of any covered loss, theft or destruction of such Collateral.
12.05 No New Liens. Administrative Agent and each Lender hereby agrees that no
Loan Party shall grant or permit its Subsidiaries to grant or permit, any Lien,
or take any action to perfect a Lien, on any asset or property to secure any
Obligation unless such Lien is granted to the Administrative Agent for the
93
benefit of the Lenders; providing nothing in this Section 12.05 shall limit the
rights of a Lender from exercising customary rights to setoff against accounts
maintained with such Person.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Second Lien Loan Agreement to be duly executed as of the date first
above written.
BORROWERS: TRM CORPORATION,
an Oregon corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TRM ATM CORPORATION, an Oregon
corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TRM COPY CENTERS (USA) CORPORATION,
an Oregon corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GUARANTORS:
ACCESS CASH INTERNATIONAL L.L.C.,
a Delaware limited liability company
By: TRM ATM Corporation, its sole member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TRM (CANADA) CORPORATION, a
corporation organized under the laws of
Canada
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Second Lien Loan Agreement
ADMINISTRATIVE
AGENT: WELLS FARGO FOOTHILL, INC.,
a California corporation, as
Administrative Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Second Lien Loan Agreement
LENDERS: GSO ORIGINATION FUNDING PARTNERS,
LP, as a Lender
By: GSO Capital Partners, as Investment
Advisor
By:
------------------------------------
Name: George Fan
Title: Managing Director
Second Lien Loan Agreement