EXHIBIT 10.1
THIRD AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and entered into effective as of December 31, 2001 (the
"Effective Date") by and among ACE CASH EXPRESS, INC., a Texas corporation (the
"Borrower"), the lenders party to the Credit Agreement (as defined below)
(collectively, together with all successors and assigns, the "Lenders"), ▇▇▇▇▇
FARGO BANK TEXAS, NATIONAL ASSOCIATION, a national banking association, as agent
for the Lenders (the "Agent"), BANK OF AMERICA, N.A., a national banking
association, as syndication agent for the Lenders (the "Syndication Agent"),
FIRST UNION NATIONAL BANK, a national banking association ("FUNB"), and JPMORGAN
CHASE BANK, a New York state banking corporation, formerly known as THE CHASE
MANHATTAN BANK ("Chase"), both as managing agents for the Lenders (FUNB and
Chase, in such capacities, are hereby referred to as the "Managing Agents")
(collectively, the Agent, the Syndication Agent and the Managing Agents are
referred to as the "Agents").
PRELIMINARY STATEMENTS
A. The Borrower, the Lenders and the Agents have entered into that
certain Amended and Restated Credit Agreement, dated as of November 9, 2000, as
amended by that certain Amendment to Amended and Restated Credit Agreement, by
and among the Borrower, the Lenders and the Agents, dated as of February 21,
2001, and as further amended by that certain Second Amendment to Amended and
Restated Credit Agreement, by and among the Borrower, the Lenders and the
Agents, dated as of November 7, 2001 (as amended, the "Credit Agreement").
B. The Borrower, the Lenders and the Agents desire to amend the Credit
Agreement and the other Credit Documents as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
AGREEMENT
ARTICLE I. DEFINITIONS
SECTION 1.01 Certain Defined Terms. Capitalized terms used in this
Amendment are used as defined in the Credit Agreement, as amended hereby, unless
otherwise stated.
ARTICLE II. AMENDMENT
SECTION 2.01 Amendment to Section 1.01; Amendment and Restatement of
Certain Defined Terms. Effective as of the Effective Date, the following
definitions contained in
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Section 1.01 of the Credit Agreement are hereby amended and restated in their
entirety to read as follows:
"Applicable Commitment Fee Percentage" shall mean 0.50% per
annum.
"Applicable Margin" shall mean the following percentages per
annum applicable to the following Types of facilities, which
percentages shall be added to the applicable interest rates for
purposes of calculating the interest rates payable to the Lenders, as
more fully described by Section 2.05:
ADJUSTED REFERENCE
ALTERNATE BASE RAT LIBOR RATE
TYPE OF FACILITY MARGIN MARGIN MARGIN
---------------- ------------------- -------- --------
Term Loan Commitment 3.00% 4.00% N/A
Revolving Credit Commitment 3.00% N/A 4.00%
Seasonal Revolving Credit 3.00% N/A N/A
Commitment
"Available Commitment Amount" shall mean at any date of
determination (i) with respect to the Revolving Credit Commitment, the
Total Revolving Credit Commitment, minus the average daily unpaid
principal balance of the Revolving Credit Loans since the later to
occur of December 31, 2001 and the last date of payment of the
Commitment Fee with respect to the Revolving Credit Commitment, as
described in Section 2.06(a) hereof and (ii) with respect to the
Seasonal Revolving Credit Commitment, the Total Seasonal Revolving
Credit Commitment, minus the average daily unpaid principal balance of
the Seasonal Revolving Credit Loans since the later to occur of
December 31, 2001 and the last date of payment of the Commitment Fee
with respect to the Seasonal Revolving Credit Commitment, as described
in Section 2.06(a).
"Final Maturity Date" shall mean April 30, 2002.
"Notes" shall mean, collectively, the Term Notes, the
Revolving Credit Notes and the Seasonal Revolving Credit Notes of the
Borrower, executed and delivered as provided in Section 2.04 hereof.
"Required Lenders" shall mean at any time (a) two (2) or more
Lenders holding at least sixty six and two thirds percent (66.67%) of
the then aggregate unpaid principal amount of the Notes or (b) if no
such principal amount is then
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outstanding, two (2) or more Lenders having at least sixty six and two
thirds percent (66.67%) of the Total Commitment.
"Total Commitment" shall mean the sum of the Lenders' Total
Term Loan Commitment, Total Revolving Credit Commitment and Total
Seasonal Revolving Credit Commitment, as the same may be terminated or
reduced from time to time in accordance with the provisions of this
Agreement.
SECTION 2.02 Amendment to Section 1.01; Deletion of Certain Defined
Terms. Effective as of the Effective Date, the definitions of "Swingline
Lender", "Swingline Loan", "Swingline Note" and "Total Swingline Facility
Amount" contained in Section 1.01 of the Credit Agreement are hereby deleted in
their entirety.
SECTION 2.03 Amendment to Section 1.01; Addition of Certain Defined
Terms. Effective as of the Effective Date, the following definitions are hereby
added to Section 1.01 of the Credit Agreement in their proper alphabetical
order:
"Seasonal Revolving Credit Commitment" shall mean, with
respect to any Seasonal Revolving Credit Lender, the Seasonal Revolving
Credit Commitment of such Lender as set forth in Schedule 2.01(c)
annexed hereto, as the same may be terminated or reduced from time to
time in accordance with the provisions of this Agreement.
"Seasonal Revolving Credit Lender" shall mean any Lender which
makes Seasonal Revolving Credit Loans pursuant to this Agreement.
"Seasonal Revolving Credit Loan" shall mean advances under the
Seasonal Revolving Credit Commitment to the Borrower made pursuant to
this Agreement.
"Seasonal Revolving Credit Note" shall mean the Seasonal
Revolving Credit Notes of the Borrower, executed and delivered as
provided in Section 2.04 hereof, in substantially the same form as
Exhibit K annexed hereto, as amended, modified or supplemented from time
to time.
"Seasonal Revolving Credit Termination Date" shall mean the
earlier of (a) March 31, 2002 or (b) such date as the Seasonal
Revolving Credit Loans shall otherwise be payable in full and the
Seasonal Revolving Credit Commitment shall terminate, expire or be
canceled in accordance with the terms of this Agreement.
"Total Seasonal Revolving Credit Commitment" shall mean the
sum of the Lenders' Seasonal Revolving Credit Commitments, as the same
may be terminated or reduced from time to time in accordance with the
provisions of this Agreement.
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SECTION 2.04 Amendment to Section 2.01(d). Effective as of the
Effective Date, Section 2.01(d) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(d) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender, severally
and not jointly, agrees to make Revolving Credit Loans to the Borrower,
at any time and from time to time, the Borrower having the right to
borrow, repay and reborrow, from the Closing Date to the Revolving
Credit Termination Date, in an aggregate principal amount at any time
outstanding not to exceed the amount of such Lender's Revolving Credit
Commitment set forth opposite its name in Schedule 2.01(b) hereto.
Notwithstanding the foregoing, at no time shall the sum of (i) the
aggregate principal amount of Revolving Credit Loans outstanding and
(ii) the aggregate principal amount of Seasonal Revolving Credit Loans
outstanding, exceed the Borrowing Base then in effect. If the total
unpaid amount of the Revolving Credit Loans and the Seasonal Revolving
Credit Loans at any time exceeds the Borrowing Base then in effect,
Borrower shall make a paydown on the Seasonal Revolving Credit Loans
(and, to the extent necessary, the Revolving Credit Loans) in an amount
sufficient to reduce the total unpaid balance of the Seasonal Revolving
Credit Loans and Revolving Credit Loans to an amount no greater than
the Borrowing Base. Such mandatory paydown shall be accompanied by all
accrued and unpaid interest on the amount prepaid."
SECTION 2.05 Amendment to Section 2.01; Addition of Section 2.01(e).
Effective as of the Effective Date, a new Section 2.01(e) is hereby added to the
Credit Agreement to read as follows:
"(e) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Seasonal
Revolving Credit Lender, severally and not jointly, agrees to make
Seasonal Revolving Credit Loans to the Borrower, at any time and from
time to time, the Borrower having the right to borrow, repay and
reborrow, from December 31, 2001 to the Seasonal Revolving Credit
Termination Date, in the aggregate principal amount at any time
outstanding not to exceed the amount of such Lender's Seasonal
Revolving Credit Commitment set forth opposite its name in Schedule
2.01(c) hereto. The Seasonal Revolving Credit Loans shall only be
available if the aggregate amount of Revolving Credit Loans equals the
Total Revolving Credit Commitment. The Seasonal Revolving Credit Loans
shall be subject to the Borrowing Base and shall not be made if any
such Seasonal Revolving Credit Loan would cause the unpaid amount of
the Seasonal Revolving Credit Loans, together with the unpaid amount of
all of the Revolving Credit Loans then outstanding, to exceed the
Borrowing Base then in effect. The Seasonal Revolving Credit Loans
shall be made on, and subject to, the same terms and conditions as the
Revolving Credit Loans, and the Seasonal Revolving Credit Commitments
shall be subject to reduction or termination upon the same terms and
conditions as the Revolving Credit Commitments, in each case to the
extent not expressly provided otherwise in this
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Agreement. Any payments made by the Borrower to the Agent during a
period when any Seasonal Revolving Credit Loans are outstanding shall
be applied first to the unpaid interest on such Seasonal Revolving
Credit Loans, second to the unpaid principal of such Seasonal Revolving
Credit Loans, and thereafter in accordance with the terms of this
Agreement.
SECTION 2.06 Amendment to Section 2.02(b). Effective as of the
Effective Date, Section 2.02(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) Revolving Credit Loans and Seasonal Revolving Credit
Loans shall be made ratably by the Lenders in accordance with their
respective Revolving Credit Commitments and Seasonal Revolving Credit
Commitments; provided, however, that the failure of any Lender to make
any Loan shall not in itself relieve any other Lender of its obligation
to lend hereunder. Term Loans shall be made by the Lenders against
delivery to each Lender of one (1) Term Note, payable to the order of
such Lender, as referred to in Section 2.04 hereof. All Revolving
Credit Loans shall be made by the Lenders against delivery to each
Lender of one (1) Revolving Credit Note, payable to the order of such
Lender, as referred to in Section 2.04 hereof. All Seasonal Revolving
Credit Loans shall be made by the Lenders against delivery to each
Lender of one (1) Seasonal Revolving Credit Note, payable to the order
of such Lender, as referred to in Section 2.04 hereof."
SECTION 2.07 Amendment to Section 2.03. Effective as of the Effective
Date, the first sentence of Section 2.03 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"The Borrower shall give the Agent irrevocable written or
facsimile notice (promptly confirmed in writing) of each borrowing to
be made by the Borrower (including, without limitation, a conversion as
permitted by Section 2.02(e) hereof) not later than (i) 8:00 a.m., San
Francisco, California time, three (3) Business Days before any
Eurodollar Loan conversion, (ii) 8:00 a.m., San Francisco, California
time, the Business Day of a proposed Revolving Credit Loan consisting
of a Reference Rate Loan borrowing or any Reference Rate Loan
conversion, (iii) 8:00 a.m., San Francisco, California time, the
Business Day of a proposed Revolving Credit Loan consisting of an
Alternate Base Loan borrowing or any Alternate Base Loan conversion,
and (iv) 8:00 a.m., San Francisco, California time, the Business Day of
a proposed Seasonal Revolving Credit Loan consisting of an Alternate
Base Loan borrowing."
SECTION 2.08 Amendment to Section 2.04(a). Effective as of the
Effective Date, Section 2.04(a) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
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"(a) All Term Loans made by a Lender to the Borrower shall be
evidenced by a single Term Note duly executed by the Borrower, dated as
of December 31, 2001, in substantially the form of Exhibit A hereto,
delivered by the Borrower and payable to such Lender in a principal
amount equal to such Lender's Term Loan Commitment on such date. All
Revolving Credit Loans made by a Lender to the Borrower shall be
evidenced by a single Revolving Credit Note, duly executed by the
Borrower, dated as of December 31, 2001, in substantially the form of
Exhibit B hereto, delivered by the Borrower and payable to such Lender
in a principal amount equal to such Lender's Revolving Credit
Commitment on such date. All Seasonal Revolving Credit Loans made by a
Lender to the Borrower shall be evidenced by a single Seasonal
Revolving Credit Note, duly executed by the Borrower, dated as of
December 31, 2001, in substantially the form of Exhibit K hereto,
delivered by the Borrower and payable to such Lender in a principal
amount equal to such Lender's Seasonal Revolving Credit Commitment on
such date."
SECTION 2.09 Amendment to Section 2.04(b). Effective as of the
Effective Date, Section 2.04(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) Each Revolving Credit Note shall bear interest from its
date on the outstanding principal balance thereof, as provided in
Section 2.05 hereof. The outstanding balance of each Revolving Credit
Loan, as evidenced by any such Revolving Credit Note, shall mature and
be due and payable on the Revolving Credit Termination Date. Each
Seasonal Revolving Credit Note shall bear interest from its date on the
outstanding principal balance thereof, as provided in Section 2.05
hereof. The outstanding balance of each Seasonal Revolving Credit Loan,
as evidenced by any such Seasonal Revolving Credit Note, shall mature
and be due and payable on the Seasonal Revolving Credit Termination
Date"
SECTION 2.10 Amendment to Section 2.04(c). Effective as of the
Effective Date, Section 2.04(c) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(c) Each Term Note shall bear interest from its date on the
outstanding principal balance thereof as provided in Section 2.05
hereof. The Borrower shall make principal payments in respect of the
Term Note on the dates and in the amounts set forth below.
Date Principal Payments
---- ------------------
February 28, 2002 $3,500,000
March 31, 2002 $1,650,000
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The aggregate unpaid principal balance of each Term Loan, as evidenced
by such Term Note, shall mature and be due and payable on the Term Loan
Termination Date."
Section 2.11 Amendment to Section 2.06. Effective as of the Effective
Date, Section 2.06 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"(a) The Borrower shall pay each Lender, through the Agent,
its pro rata share of a monthly commitment fee ("Commitment Fee") from
December 31, 2001 until the later to occur of the Revolving Credit
Termination Date and the Seasonal Revolving Credit Termination Date, in
an amount equal to: (i)(A) the Available Commitment Amount applicable
to the Revolving Credit Commitment during such month (or such shorter
period as may be applicable), multiplied by (B) the Applicable
Commitment Fee Percentage, plus (ii)(A) the Available Commitment Amount
applicable to the Seasonal Revolving Credit Commitment during such
month (or such shorter period as may be applicable), multiplied by (B)
the Applicable Commitment Fee Percentage; provided, however, that there
shall be no Commitment Fee attributable to (i) the Revolving Credit
Commitment after the Revolving Credit Termination Date or (ii) the
Seasonal Revolving Credit Commitment after the Seasonal Revolving
Credit Termination Date.
(b) Any portion of the Commitment Fee that has not been
previously paid shall be payable in immediately available funds (i) on
the last Business Day of each calendar month commencing on January 31,
2002, (ii) with respect to the Revolving Credit Commitment, on the
Revolving Credit Termination Date, (iii) with respect to the Seasonal
Revolving Credit Loans, on the Seasonal Revolving Credit Termination
Date and (iv) on the date of any reduction of the Total Revolving
Credit Commitment or Total Seasonal Revolving Credit Commitment, in
each case in accordance with the provisions of this Agreement. The
Commitment Fee due to each Lender under this Section 2.06 shall
commence to accrue on December 31, 2001 and cease to accrue (i) on the
Revolving Credit Termination Date, with respect to the Revolving Credit
Commitment, and (ii) on the Seasonal Revolving Credit Termination Date,
with respect to the Seasonal Revolving Credit Commitment, in each case
in accordance with the terms of this Section 2.06. The Commitment Fee
shall be calculated on the basis of the actual number of days elapsed
in a year of 360 days."
SECTION 2.12 Amendment to Section 2.07(e). Effective as of the
Effective Date, Section 2.07 of the Credit Agreement is hereby amended to add a
new Section 2.07(e) thereto, which section shall read as follows:
"(e) The Seasonal Revolving Credit Commitment of each Lender
shall automatically and permanently terminate on the Seasonal Revolving
Credit Termination Date, and all Seasonal Revolving Credit Loans still
outstanding on such date shall be due and payable in full together with
accrued interest thereon.
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No Lender shall have any obligation to make any Seasonal Revolving
Credit Loans after the Seasonal Revolving Credit Termination Date."
SECTION 2.13 Amendment to Section 2.09. Effective as of the Effective
Date, Section 2.09(a) of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"(a) Within fifteen (15) Business Days after the consummation
of any Asset Sale, the Borrower shall prepay the Obligations in an
amount equal to one hundred percent (100%) of the net cash proceeds of
such Asset Sale; provided, however, that the Borrower shall have no
obligation to make any such prepayment pursuant to this Section 2.09(a)
until the Borrower has received, with respect to any Fiscal Year,
aggregate net cash proceeds from Asset Sales of at least one million
dollars ($1,000,000) (the "Asset Sale Limit"). Such prepayments shall
be applied, first to the unpaid interest on the Seasonal Revolving
Credit Loans, second to the unpaid principal of the Seasonal Revolving
Credit Loans, third to the principal payments of the Term Loan in
inverse order of their maturity, fourth to the unpaid interest of the
Term Loan and finally to the repayment of the Revolving Credit Loans."
SECTION 2.14 Amendment to Section 2.09. Effective as of the Effective
Date, Section 2.09(b) of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"(b) Within five (5) Business Days after the receipt of
proceeds pursuant to an issuance by the Borrower or any of its
Subsidiaries of any of the Borrower's or any such Subsidiary's equity
securities (and regardless of whether such equity securities are issued
in a public or private sale), the Borrower shall prepay the Obligations
in an amount equal to the net cash proceeds of any such sale of equity
securities. Such prepayments shall be applied, first to the unpaid
interest on the Seasonal Revolving Credit Loans, second to the unpaid
principal of the Seasonal Revolving Credit Loans, third to the
principal payments of the Term Loan in inverse order of their maturity,
fourth to the unpaid interest of the Term Loan and finally to the
repayment of the Revolving Credit Loans."
SECTION 2.15 Amendment to Section 2.09. Effective as of the Effective
Date, Section 2.09(e) of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"(e) The Borrower shall make prepayments of the Revolving
Credit Loans and Seasonal Revolving Credit Loans from time to time as
required in order to ensure that the aggregate principal amount of the
Revolving Credit Loans and Seasonal Revolving Credit Loans outstanding
does not exceed (i) the Borrowing Base then in effect, or (ii) the
Total Revolving Credit Commitment plus the Total Seasonal Revolving
Credit Commitment."
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SECTION 2.16 Amendment to Section 2.09. Effective as of the Effective
Date, Section 2.09(f) of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"(f) Any prepayments required by Paragraph (a) or (b) above
shall be applied pursuant to such provisions, and as to the principal
within each Loan class shall be applied first to outstanding Alternate
Base Loans up to the full amount thereof, then to outstanding Reference
Rate Loans up to the full amount thereof, then to outstanding
Eurodollar Loans up to the full amount thereof, and then as cash
collateral for outstanding Letters of Credit up to the full amount of
the Total Letter of Credit Exposure then existing, such cash collateral
to be held by the Agent for the benefit of WFB in a special cash
collateral account."
SECTION 2.17 Amendment to Section 2.17. Effective as of the Effective
Date, Section 2.17 of the Credit Agreement is hereby deleted in its entirety.
SECTION 2.18 Amendment to Section 4.01(a). Effective as of the
Effective Date, Section 4.01(a) of the Credit Agreement is hereby amended to
delete the parenthetical "(including for any Swingline Loan requested pursuant
to Section 2.17 hereof)" therefrom.
SECTION 2.19 Amendment to Section 6.05. Effective as of the Effective
Date, Section 6.05 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Consolidations, Mergers and Sales of Assets. (a) Directly or
indirectly consolidate with or merge into any other Person, or permit
another Person to merge into it, unless it is a Guarantor merging into
the Borrower (with the Borrower being the surviving entity) or another
Guarantor; provided, that, (i) such entity has provided the Agent with
written notice at least ten (10) Business Days prior to such merger,
and (ii) all Liens in favor of the Collateral Trustee granted by such
entities continue to be valid, perfected and first priority (except for
pre-existing Liens on the assets of such other Person which are
permitted under Section 6.01 hereof), or (b) acquire all or
substantially all the capital stock or assets of, or ownership
interests in, any other Person or (c) sell, lease, transfer or assign
to any Persons or otherwise dispose of (whether in one transaction or a
series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired), or sell any of its assets other than
in the ordinary course of business, including any Asset Sales unless
Borrower complies with the requirements of Section 2.09(b); except any
Subsidiary of the Borrower may sell or lease any of its assets to the
Borrower or to another Subsidiary of the Borrower; provided, that, all
Liens on any such assets in favor of the Collateral Trustee continue to
be valid, perfected and first priority.
SECTION 2.20 Amendment to Section 6. Effective as of the Effective
Date, Section 6 of the Credit Agreement is hereby amended to add a new Section
6.19 thereto, which section shall read as follows:
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"SECTION 6.19 Store Leases; Capital Expenditures. From and
after December 31, 2001, the Borrower shall not enter into any lease,
commitment or other agreement obligating the Borrower to take occupancy
of any additional leased space or open any new stores. Notwithstanding
the foregoing, the Borrower shall be permitted to finish out any stores
that were not completed as of December 31, 2001 if (a) the Borrower
entered into the lease agreement related to such store prior to
December 31, 2001, (b) the lease agreement related to such store
requires that the Borrower take occupancy of the leased facility prior
to June 30, 2002, (c) the lease agreement related to such store is set
forth on Schedule 6.19 hereto, (d) the total amount of all Capital
Expenditures made by Borrower in connection with the finish out of all
such additional stores listed on Schedule 6.19, made but not paid for
prior to December 31, 2001, does not exceed $150,000 and (e) the total
amount of all Capital Expenditures, excluding those permitted by
Section 6.19(d), made by Borrower in connection with the finish out of
all such additional stores does not exceed $1,355,000 from December 31,
2001 through and including the Final Maturity Date. In addition to the
foregoing, during the period from December 31, 2001 through and
including the Final Maturity Date, the Borrower shall not make any
Capital Expenditures except for (a) the Capital Expenditures expressly
permitted pursuant to the preceding sentence of this Section 6.19 and
(b) other Capital Expenditures not to exceed $2,000,000 in the
aggregate."
SECTION 2.21 Miscellaneous Amendments. Effective as of the Effective
Date, (i) the word "Swingline" that appears in (A) the definitions of "Loan" and
"Required Lenders" contained in Section 1.01 of the Credit Agreement and (B) in
Section 2.03 of the Credit Agreement is hereby deleted and replaced with the
words "Seasonal Revolving Credit" and (ii) the reference to "2.17" that appears
in Section 2.13 of the Credit Agreement is hereby deleted and replaced with
"2.01(e)".
SECTION 2.22 Addition of Schedules 2.01(c) and 6.19. Effective as of
the Effective Date, a new Schedules 2.01(c) and 6.19 are hereby added to the
Credit Agreement in the forms attached hereto as Schedules 2.01(c) and 6.19,
respectively.
SECTION 2.23 Amendment Exhibit K. Effective as of the Effective Date,
Exhibit K is hereby amended in the form attached hereto as Exhibit K.
ARTICLE III. CONDITIONS PRECEDENT
SECTION 3.01 The effectiveness of the amendments in Article II of this
Amendment is subject to the satisfaction of the following conditions precedent:
(a) The Lenders shall have received (i) this Amendment, duly
executed by the Borrower and the Lenders, (ii) a certificate of the
Secretary of the Borrower acknowledging (A) that the Borrower's Board
of Directors has adopted, approved, consented to and ratified
resolutions which authorize the execution, delivery and performance by
the Borrower of this Amendment, and (B) the names
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of the officers of the Borrower authorized to sign this Amendment
together with specimen signatures of such officers, (iii) a Consent and
Ratification of the existing Guaranty Agreements, substantially in the
form of Exhibit G to the Credit Agreement, executed by each Guarantor,
(iv) the Seasonal Revolving Credit Notes executed by the Borrower, (v)
the letter agreement between Borrower and Agent dated of even date
herewith, and (vi) such additional documents, instruments and
information as the Agents or any Lender may reasonably request;
(b) The representations and warranties contained herein and in
the Credit Agreement, as amended hereby, and the other Credit Documents
shall be true and correct in all material respects as of the date
hereof, as if made on the date hereof;
(c) After giving effect to this Amendment, no Default or Event
of Default shall have occurred and be continuing;
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to the Agents and the Required Lenders and their legal
counsel;
(e) Agent shall have received financial statements, in form
and substance satisfactory to Agent, of the Borrower through November
30, 2001;
(f) Agent shall received a collateral audit, in the form and
substance satisfactory to the Agent and the Lenders; and
(g) Borrower shall have paid the commitment fee accrued
pursuant to Section 2.06 of the Agreement (prior to giving effect to
this Amendment) through the date of this Amendment.
ARTICLE IV. COVENANTS
SECTION 4.01 Borrower hereby agrees to pay to each Lender (i) a
nonrefundable commitment fee in consideration of the Loans and other credit
accommodations provided herein, the receipt and adequacy of which are hereby
acknowledged, (a) in an amount equal to .50% of each Lender's combined Revolving
Credit Commitment and Term Loan Commitment (as of the date of this Amendment)
and payable on each of January 1, 2002 and March 1, 2002, and (b) in an amount
equal to 1.00% of each Lender's Seasonal Revolving Credit Commitment (as of the
date of this Amendment) and payable on March 31, 2002 or the termination date of
the Seasonal Revolving Credit Commitment and (ii) such other fees and expenses
that are to be paid by Borrower in connection with this Amendment, all of which
fees pursuant to this sentence shall be deemed fully earned and nonrefundable
upon execution of this Amendment by Borrower, Agent and the Lenders. Borrower
hereby further agrees that if Borrower sells all or substantially all of the
stock or assets of Borrower or participates in any merger, consolidation,
reorganization, share exchange, recapitalization or similar transaction or
series of related transactions involving the
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sale of all or substantially all of the stock or assets of Borrower or if
Borrower and/or its shareholders enter into an agreement to effectuate any such
transaction which is subsequently consummated, on or prior to the Final Maturity
Date (as the same may be extended from time to time) or within 120 days
thereafter, Borrower shall pay to the Agent and the Lenders, simultaneously with
the consummation of such transaction or promptly thereafter, a success fee in an
amount equal to .50% of each such Lender's combined Term Loan Commitment,
Revolving Credit Commitment and Seasonal Revolving Credit Commitment, which fee
shall be deemed fully earned and nonrefundable upon such sale.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
SECTION 5.01 The Borrower hereby represents and warrants to the Agents
and the Lenders that (a) the representations and warranties contained in the
Credit Agreement, as amended hereby, and in any other Credit Document are true
and correct in all material respects on and as of the date hereof as though made
on and as of the date hereof (except insofar as such representations and
warranties relate expressly to an earlier date); (b) no Default of Event of
Default under the Credit Agreement, as amended hereby, or any other Credit
Document has occurred and is continuing; and (c) Borrower is in compliance in
all material respects with all covenants and agreements contained in the Credit
Agreement, as amended hereby, and in the other Credit Documents.
ARTICLE VI. NO WAIVER
SECTION 6.01 Except as expressly provided herein, (i) nothing contained
in this Amendment or any other communication between Agents and/or Lenders and
the Borrower shall be a waiver of any past, present or future violation, default
or Event of Default of the Borrower under the Credit Agreement or any Credit
Document; (ii) Agents and Lenders hereby expressly reserve any rights,
privileges and remedies under the Credit Agreement and each Credit Document that
Agents and Lenders may have with respect to each violation, default or Event of
Default, and any failure by Agents and/or Lenders to exercise any right,
privilege or remedy as a result of the violations set forth above shall not
directly or indirectly in any way whatsoever either (A) impair, prejudice or
otherwise adversely affect the rights of Agents and/or Lenders, except as set
forth herein, at any time to exercise any right, privilege or remedy in
connection with the Credit Agreement or any Credit Documents, (B) amend or alter
any provision of the Credit Agreement or any Credit Documents or any other
contract or instrument, or (C) constitute any course of dealing or other basis
for altering any obligation of the Borrower or any rights, privilege or remedy
of Agents and/or Lenders under the Credit Agreement or any Credit Documents or
any other contract or instrument; and (iii) nothing in this Amendment shall be
construed to be a consent.
ARTICLE VII. MISCELLANEOUS PROVISIONS
SECTION 7.01 Ratification of Credit Agreement and Other Credit
Documents. Except as expressly provided herein, (i) the Credit Agreement and all
other Credit Documents shall remain unmodified and in full force and effect as
supplemented and amended hereby, and
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(ii) the Borrower hereby affirms all the provisions of the Credit Agreement, as
amended hereby, and the other Credit Documents.
SECTION 7.02 Confirmation of the Security Documents. The Borrower
hereby acknowledges and confirms that the Collateral (as defined in the Security
Documents) continues to secure the Liabilities (as defined in the Security
Documents), including those arising under the Credit Agreement, as amended
hereby.
SECTION 7.03 Counterparts. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the same
instrument.
SECTION 7.04 RELEASE. THE BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO
DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR
NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF
ITS LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF OR
DAMAGES OF ANY KIND OR NATURE FROM AGENT OR LENDERS. THE BORROWER HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES AGENT AND LENDERS,
THEIR PREDECESSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND
ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES,
COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR
UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT
LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AMENDMENT IS EXECUTED, WHICH THE BORROWER MAY NOW OR HEREAFTER HAVE AGAINST
AGENT AND/OR LENDERS, THEIR PREDECESSORS, OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH
CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, AND ARISING FROM ANY "LOANS", INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE CREDIT AGREEMENT OR OTHER CREDIT DOCUMENTS, AND THE
NEGOTIATION OF, AND EXECUTION OF, THIS AMENDMENT.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date
first above written.
BORROWER:
ACE CASH EXPRESS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AGENT:
▇▇▇▇▇ FARGO BANK
TEXAS, NATIONAL
ASSOCIATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SYNDICATION AGENT:
BANK OF AMERICA, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
MANAGING AGENTS:
JPMORGAN CHASE BANK
(f/k/a THE CHASE MANHATTAN BANK)
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
FIRST UNION NATIONAL BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
LENDERS:
▇▇▇▇▇ FARGO BANK
TEXAS, NATIONAL
ASSOCIATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BANK OF AMERICA, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
JPMORGAN CHASE BANK
(f/k/a THE CHASE MANHATTAN BANK)
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
FIRST UNION NATIONAL BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
NATIONAL CITY BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
HIBERNIA NATIONAL BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
TEXAS CAPITAL BANK, NATIONAL ASSOCIATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
FIRST AMERICAN BANK, SSB
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SCHEDULE 2.01(c)
Seasonal Revolving CREDIT COMMITMENTS
Lender Commitment Percentage of Commitment
------ ---------- ------------------------
▇▇▇▇▇ Fargo Bank Texas, National $12,500,000.00 50.00%
Association
Bank of America, N.A. $ 8,238,636.54 32.95%
JPMorgan Chase Bank $ 4,261,363.46 17.05%
TOTAL SEASONAL REVOLVING CREDIT $25,000,000.00 100.00%
COMMITMENTS
EXHIBIT K
FORM OF SEASONAL REVOLVING CREDIT NOTE
U.S. $________________ Dallas,
Texas December 31, 2001
FOR VALUE RECEIVED, the undersigned, ACE CASH EXPRESS, INC., a
Texas
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
____________________ (the "Lender"), for the account of its Applicable Lending
Office (as defined in that certain Amended and Restated Credit Agreement, dated
as of November 7, 2000, by and among the Borrower, the Lender, certain other
lenders from time to time parties thereto (collectively, the "Lenders"), ▇▇▇▇▇
Fargo Bank
Texas, National Association, a national banking association, as Agent
for the Lenders, Bank of America, N.A., a national banking association, as
Syndication Agent, and First Union National Bank, a national banking
association, and The Chase Manhattan Bank, a national banking association, both
as Managing Agents (as amended, modified or supplemented from time to time, the
"Credit Agreement") (capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Credit Agreement) or any other office
designated by the Lender, the lesser of (i) the principal sum of
________________ DOLLARS ($______________), or (ii) the aggregate unpaid
principal amount of all Seasonal Revolving Credit Loans made by the Lender to
the Borrower pursuant to the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of
each Seasonal Revolving Credit Loan from the date of such Seasonal Revolving
Credit Loan until such principal amount is paid in full, at such interest rates,
and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to ▇▇▇▇▇ Fargo Bank
Texas, National Association, a national
banking association, as Agent, at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Seasonal Revolving Credit Loan made by the
Lender to the Borrower and all payments made on account of principal thereof,
shall be recorded by the Lender and, prior to any transfer hereof, endorsed on
the grid attached hereto which is part of this Seasonal Revolving Credit Note
(this "Note"), provided, however, that failure of the Lender to make such
notation or any error therein shall not in any manner affect the obligation of
the Borrower to repay such Seasonal Revolving Credit Loans in accordance with
the terms of this Note.
This Note is one of the Seasonal Revolving Credit Notes referred to in,
and is subject to and entitled to the benefits of, the Credit Agreement. This
Note is secured by the Collateral described in the Credit Documents. The Credit
Agreement, among other things, (i) provides for the making of Seasonal Revolving
Credit Loans by the Lender to the Borrower from time to time pursuant to Section
2.01(e) of the Credit Agreement in an aggregate outstanding amount not to exceed
at any time the U.S. dollar amount first above mentioned, the indebtedness of
the
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Borrower resulting from each such Seasonal Revolving Credit Loan being evidenced
by this Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
The Borrower hereby waives presentment, demand, protest, notice of
intent to accelerate, notice of acceleration and any other notice of any kind,
except as provided in the Credit Agreement. No failure to exercise, and no delay
in exercising, any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF TEXAS (EXCEPT THAT THE PROVISIONS OF CHAPTER 346 OF THE
TEXAS FINANCE CODE, WHICH REGULATES CERTAIN REVOLVING CREDIT LOAN ACCOUNTS,
SHALL NOT APPLY TO THIS NOTE).
ACE CASH EXPRESS, INC.
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
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LOANS, MATURITIES
AND PAYMENTS OF PRINCIPAL AND INTEREST
Rate of Amount of
Interest Principal Amount of Unpaid
Amount and Applicable to Paid or Interest Paid Principal Notation
Borrowing Date Type of Loan Loan Prepaid or Prepaid Balance Made By
-------------- ------------ ------------- --------- ------------- --------- ---------
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