EXHIBIT 10.32
THIRD AMENDMENT TO 1992 MASTER AGREEMENT
THIS THIRD AMENDMENT ("Third Amendment") is dated as of November 15, 1996,
by and between AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New
York corporation, having a principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, World Financial
Center, American ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Amex"), and ACE CASH
EXPRESS, INC., a Texas corporation having its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Agent").
RECITALS
A. Amex and Agent have entered into that certain 1992 Master Agreement
dated as of October 14, 1992 ("1992 Master Agreement").
B. Amex and Agent have entered into that certain First Amendment to 1992
Master Agreement dated as of December 1, 1992 ("First Amendment").
C. Amex and Agent modified the 1992 Master Agreement (as amended by the
First Amendment) pursuant to those certain letter agreements dated respectively
on or about December 6, 1993, and October 26, 1994 (collectively herein the
"Letter Agreements").
D. Amex and Agent supplemented the 1992 Master Agreement (as amended by
the First Amendment and the Letter Agreements) by those certain letter
agreements dated respectively on or about August 2, 1994, and July 13, 1995, but
the provisions of such letter agreements are not affected by any amendment,
modification or supplement set forth in this Third Amendment.
E. Amex and Agent have entered into that certain Second Amendment to 1992
Master Agreement dated as of September 8, 1995 ("Second Amendment").
F. Amex and Agent amended and modified the 1992 Master Agreement (as
amended through the Second Amendment) pursuant to a letter agreement dated
effective February 1, 1996 ("1996-1 Letter Agreement").
G. Contemporaneously with this Third Amendment, Agent has entered into
that certain Note Purchase Agreement dated as of November 15, 1996 ("Principal
Mutual Note Agreement") with Principal Mutual Life Insurance Company, an Iowa
corporation ("Principal Mutual"), pursuant to which Principal Mutual is
committed and agrees to purchase Agent's 9.03% Senior Secured Notes due November
15, 2003, in the aggregate amount of $20,000,000 and a principal use of the
proceeds of which shall be to refinance and pay the Indebtedness of Agent to
Amex in respect
of that certain Revolving Advance Commitment and the outstanding unpaid
Revolving Commitment Advances in respect thereof (as such terms are defined in
the Second Amendment), together with accrued but unpaid interest thereon and
costs and fees, as provided in this Third Amendment.
H. Amex has agreed to continue to make available to Agent the Revolving
Advance Commitment as set forth and described in the Second Amendment (as the
terms and conditions thereof are amended pursuant to this Third Amendment).
I. Contemporaneously with this Third Amendment, Amex, Agent, Principal
Mutual and Wilmington Trust Company, a Delaware banking corporation in its
capacity as trustee ("Wilmington Trust"), have entered into that certain
Collateral Trust Agreement dated as of November 15, 1996 ("Intercreditor
Collateral Trust Agreement"), which among other things provides for certain
intercreditor agreements, undertakings, relationships, prioritization of
distributions upon foreclosure and liquidation of collateral subject thereto,
and other agreements and arrangements among Agent, Amex and Principal Mutual
(and any other Beneficiaries, as defined and permitted in the Intercreditor
Collateral Trust Agreement) and for the delivery of that certain Assignment of
Deposit Accounts and Security Agreement between Agent and Wilmington Trust of
even date therewith together with other security documents and instruments by
Agent and others (such assignment of deposits and security agreement and other
security documents and instruments [as any of the same may be hereafter amended,
modified or restated] herein collectively or individually the "Wilmington Trust
Security Document(s)") to secure Agent's undertakings, agreements, obligations
and liabilities under or with respect to the Master Agreement and other Security
Documents, the Principal Mutual Note Agreement, other Beneficiary Agreement(s)
(as defined in the Intercreditor Collateral Trust Agreement), the Intercreditor
Collateral Trust Agreement and the Wilmington Trust Security Documents.
Pursuant to and subject to the terms of the Intercreditor Collateral Trust
Agreement, Amex has agreed to subordinate its security interests and Lien
pursuant to the Security Documents to the security interests and Lien existing
in favor of Wilmington Trust pursuant to the Wilmington Trust Security
Documents.
J. Because of the transactions described in Recitals G, H and I, the
parties have agreed to certain amendments to the 1992 Master Agreement (as
heretofore amended), and the purpose of this Third Amendment is to memorialize
such amendments and related agreements.
IN CONSIDERATION of the foregoing and the mutual agreements set forth
herein, the parties agree as follows:
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ARTICLE I
AMENDMENTS
Section 1.1. Amendments to 1992 Master Agreement.
A. Section 3.2. Amendment. By reason of the 1996-1 Letter Agreement
and the 1996 MoneyGram/SM/ Master Agreement (as referred to and defined therein,
and so used herein), the parties acknowledge that Section 3.2 set forth in the
1992 Master Agreement and any provision elsewhere in the 1992 Master Agreement
related to MoneyGram Money Transfer Services and the MoneyGram Agreement (as
incorporated in the 1992 Master Agreement at Section 1 thereof) are no longer a
part of the 1992 Master Agreement (as amended), except that said 1992 Master
Agreement and the 1996 MoneyGram/SM/ Master Agreement are cross-defaulted to
each other so long as Amex (or IPS or its Affiliates) shall be the party other
than Agent to both such agreements.
B. Section 3.4 Amendments. Subclause (v) set forth in Section 3.4
of the 1992 Master Agreement is amended and restated in its entirety to read as
follows: "(v) paying for capital assets or any amounts, sums or obligations due
under or in respect of the 1996 MoneyGram/SM/ Master Agreement,". For purposes
of Subsection 3.4.2.C. of the 1992 Master Agreement, the form of certification
required to be supplied by Agent in connection with each Advance Request shall
be in the form of the Certificate for Advance Requests attached as Exhibit A
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hereto.
C. Section 3.5.1 Amendment. The cross-reference phrase "[as said
section is set forth in Section 1.2.P. of the Second Amendment]" relating to
Section 6.5 of the First Amendment which is contained in Section 3.5.1 of the
First Amendment (as said Section 3.5.1 is amended and restated at Section 1.1.J.
of the Second Amendment) in the definition of "Liquid Security Amount" is
amended and restated in its entirety to read "[as said Section 6.5 is amended
and restated at Section 1.2.E. of the Third Amendment]."
D. Sections 4.1 and 4.3 Amendments. The parties acknowledge that
the provisions relating to MoneyGram Money Transfer Services and the MoneyGram
Agreement in Sections 4.1 and 4.3 of the 1992 Master Agreement have been
superseded by reason of the 1996-1 Letter Agreement and the 1996 MoneyGram/SM/
Master Agreement and, consequently, such provisions have no further application
for purposes of the Master Agreement. Additionally, Agent agrees that the third
sentence of said Section 4.3 pertaining to Agent's right to participate in
public test marketing, the fourth sentence of said Section 4.3 pertaining to
substitute payment instruments and the last sentence of said Section 4.3,
pertaining to Agent's right to terminate the Master Agreement upon a certain
determination being made by Agent, shall
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each be deemed deleted from said Section 4.3 and without any further force or
effect as of the date of this Third Amendment. Also, with respect to the
remaining provisions of said Section 4.3, Agent and Amex acknowledge and agree
that any assignment by Amex pursuant thereto may be on a location-by-location
basis and, therefore, Agent, on a system-wide basis, will be offering both
American Express(R) Money Orders as well as those of a permitted assignee until
such conversion is completed. Therefore, during the conversion period and until
Amex has been paid all sums due it under the Master Agreement with respect to
Amex Money Orders (including Money Orders i) sold by Agent or ii) lost, stolen
or misappropriated by or from Agent and paid by Amex) (such aggregate period
hereafter referred to in this Section as the "Period"), the term "Money Orders"
shall refer to both Amex Money Orders and Money Orders of the permitted
assignee. Additionally, during the Period, the definitions of "Amex
Indebtedness", "Trust Funds", "Amex Fees" and "Obligations" shall be deemed to
include (as appropriate) sums owed by Agent with respect to both Amex Money
Orders and the Money Orders of the permitted assignee. After the Period, any
reference to "Amex" (including any variation or derivative thereof, e.g., "Amex
Fees" or "Amex Indebtedness") in the Master Agreement or any other Security
Document (excluding for this particular purpose the 1996 MoneyGram/SM/ Master
Agreement, Intercreditor Collateral Trust Agreement and the Wilmington Trust
Security Documents) thereafter shall be deemed to refer to any such permitted
assignee of Amex or any permitted assignee of such permitted assignee (in each
case, all as the circumstances or context may require) in the place and stead of
Amex.
E. Subsection 5.6.A Amendment. For purposes of Subsection 5.6.A. of
the First Amendment, Amex agrees that instruments and post-dated checks received
by Agent in respect of small consumer loans permitted by the provisions of
Section 6.5 of the First Amendment (as said Section 6.5 is amended and restated
at Section 1.2.E. of this Third Amendment) shall not be required to be pledged
and assigned to Amex or deposited by Agent as required by said Subsection 5.6.A.
upon such receipt, but, upon the occurrence of the date of any such post-dated
check, Agent shall comply with the provisions of such Subsection 5.6.A. as to
such check (as though Agent had received such check on such date).
F. Section 5.7 Amendments. The cross-reference phrase "[as said
section is set forth in Section 1.2.P. of the Second Amendment]" relating to
Section 6.5 of the First Amendment which is contained in Section 5.7 of the
First Amendment (as said Section 5.7 is set forth at Section 1.1.L. of the
Second Amendment) is amended and restated in its entirety to read "[as said
Section 6.5 is amended and restated at Section 1.2.E. of the Third Amendment]".
Notwithstanding any general deletion of the references to "MoneyGram" in the
Master Agreement even after such time as the party other than Agent to the 1996
MoneyGram/SM/ Master Agreement is not Amex or IPS or its Affiliates, the
reference in
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the last sentence of Section 5.7 to "MoneyGram" shall not be deemed deleted.
G. Section 5.8 Amendments. Agent acknowledges and agrees that the
proceeds of Agent's notes issued to Principal Mutual pursuant to the Principal
Mutual Note Agreement will be used in substantial part to refinance and pay the
outstanding balance of Revolving Commitment Advances, together with accrued but
unpaid interest, costs and commitment fees as of the date such notes are first
issued, as provided for in Section 5.8 of the 1992 Master Agreement (as said
Section 5.8 is set forth at Section 1.1.L. of the Second Amendment). Amex and
Agent agree that their respective undertakings and agreements contained in the
Intercreditor Collateral Trust Agreement shall be deemed or considered to
satisfy each of their respective obligations under said Section 5.8 with respect
to the Obligations and the security in favor of Amex therefor. Additionally,
from and after the date of funding of the refinancing of the outstanding
Revolving Commitment Advances through the Principal Mutual Note Agreement as
described above, said Section 5.8 shall be deemed amended and restated in its
entirety to read as follows: "Intentionally Omitted".
H. Section 5.9 Amendment. Notwithstanding any general deletion of
such references in the Master Agreement even after such time as the party other
than Agent to the 1996 MoneyGram/SM/ Master Agreement is not Amex or IPS or its
Affiliates, the references in Section 5.9 of the 1992 Master Agreement (as said
Section 5.9 is set forth at Section 1.1.L. of the Second Amendment) to
"MoneyGram" and the "MoneyGram Agency and Trust Agreement" shall not be deemed
deleted.
I. Amendments to Sections 8, 9 and 10. The parties acknowledge that
any provisions relating to MoneyGram Money Transfer Services and the MoneyGram
Agreement in Sections 8, 9 and 10 of the 1992 Master Agreement have been
superseded by reason of the 1996-1 Letter Agreement and the 1996 MoneyGram/SM/
Master Agreement and, consequently, have no further application for purposes of
the 1992 Master Agreement.
J. Section 12 Amendment. In Section 12 of the 1992 Master Agreement,
the Facsimile No. for Agent is amended to read "(▇▇▇) ▇▇▇-▇▇▇▇."
K. Section 27 Amendment. On page 13 of the Second Amendment the
Subsection captioned "Section 27 Amendment" is erroneously designated as
Subsection "L" and effective as of the date of the Second Amendment, such
designation shall be amended to read "Q". The last sentence of Section 27 of
the 1992 Master Agreement is amended and restated in its entirety to read as
follows: "As of November 15, 1996, Agent conducts its business at its Centers
in each of the following jurisdictions: Arizona,
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Arkansas, Colorado, District of Columbia, Florida, Georgia, Indiana, Louisiana,
Maryland, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, South Carolina,
Tennessee, Texas, Virginia and Washington, and Agent shall notify Amex in
writing of its intent to conduct business in any other jurisdiction at least
thirty (30) days prior to actual commencement of the conduct of business in such
jurisdiction, unless Amex (in its sole discretion) shall agree in writing to
shorten such notice period as to any such jurisdiction."
L. Section 29 Amendment. The parties acknowledge that the references
to Sections 2 and 3.2 in Section 29 of the 1992 Master Agreement (as said
Section 29 is added and set forth at Section 1.7 of the First Amendment) have no
further application for purposes of such section.
Section 1.2. Amendments to First Amendment.
A. Section 6.2.J. Amendment. Subparagraph J of Section 6.2 set
forth in the First Amendment is hereby amended and restated in its entirety to
read as follows:
"J. Money Orders and MoneyGrams. No money order shall be issued or
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sold and no wire transfer of money on behalf of Agent's customers shall be
made to or for any Person, except as permitted by the Master Agreement or
the 1996 MoneyGram/SM/ Master Agreement, as applicable; provided that,
following the date neither Amex nor IPS or any of its Affiliates at the
time shall be the other party to the 1996 MoneyGram/SM/ Master Agreement,
the foregoing restriction related to such wire transfers of money and the
1996 MoneyGram/SM/ Master Agreement shall be considered to no longer
apply."
B. Section 6.2.K. Amendment. Clauses (vii) and (viii) of Section
6.2.K. set forth in the First Amendment (as such clauses are amended and
restated at Section 1.2.J. of the Second Amendment) are amended and restated in
their entirety to read as follows:
"(vii) grants of options under the Option Plan exercisable to
purchase up to 1,170,000 shares of Employee Stock; (viii) issuances of up
to 1,170,000 shares of Employee Stock upon the exercise of options granted
under the Option Plan;"
C. Section 6.2.N. Amendments. The reference to "Section 1.1.K. of
the Second Amendment" contained in subclause (xii) of Subsection 6.2.N. of the
First Amendment (as amended and restated at Section 1.2.K. of the Second
Amendment) is in error, and, effective as of the date of the Second Amendment,
is amended to read "Section 1.1.L. of the Second Amendment". Also, Amex
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agrees that the Lien(s) granted pursuant to the Intercreditor Collateral Trust
Agreement and the Wilmington Trust Security Documents are in compliance with and
shall be considered as Permitted Liens for purposes of said subclause (xii) of
Section 6.2.N.
D. Section 6.2.T. Amendment. There shall be added to Section 6.2
set forth in the First Amendment the following Subparagraph T:
"T. Principal Mutual Note Agreement, Beneficiary Agreement,
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Intercreditor Collateral Trust Agreement and Wilmington Trust Security
----------------------------------------------------------------------
Documents. Agent (for itself and its Subsidiaries) shall not permit to
---------
occur an event of default under or in respect of the Principal Mutual Note
Agreement, Agent's note(s) issued to Principal Mutual pursuant thereto, any
Beneficiary Agreement (including any notes or instruments of Agent issued
to the Beneficiary thereunder pursuant thereto), the Intercreditor
Collateral Trust Agreement or any of the Wilmington Trust Security
Documents, as any such event of default shall be defined in and governed by
the express terms of such agreements, notes, instruments or documents."
E. Section 6.5 Amendment. Section 6.5 of the First Amendment (as
said Section 6.5 is set forth at Section 1.2.P. of the Second Amendment) is
further amended and restated in its entirety to read as follows:
"6.5 Agent Consumer Loan Program. Notwithstanding any provision to
---------------------------
the contrary set forth in Section 6.1 or 6.2 of the First Amendment, but
subject to any restrictions set forth in this Section 6.5, Agent may offer
and make small consumer loans at its locations (including, for purposes of
this Section 6.5, franchisee locations); provided that, Agent shall
continue to maintain the Coverage Ratio, as provided in Section 3.5.1. of
the First Amendment (as said Section 3.5.1. is amended and restated at
Section 1.1.J. of the Second Amendment and amended at Section 1.1.C. of the
Third Amendment), and shall comply with any state or local law or
regulation governing the conduct of such operations. No proceeds of any
Advance , together with the proceeds of any outstanding Advances previously
made to Agent, in excess of $1,000,000 in the aggregate shall be used to
fund any such small consumer loans, unless Amex shall approve a higher
amount (such approval to be in Amex's sole and absolute discretion). Any
instruments or contracts evidencing such loans shall not serve as security
(provided payments to Agent made on or in connection with such instruments
or contracts shall not
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be excluded) for any amounts due Amex under Sections 3.4 and 5 of the 1992
Master Agreement (as said Sections 3.4 and 5 are amended and/or restated in
the Second and Third Amendments or any subsequent amendment of the Master
Agreement) or in respect of any other Obligations notwithstanding any
provision to the contrary in any of the Security Documents. For purposes
of this Section 6.5, a "small consumer loan" shall mean any direct cash
advance or loan through a location of Agent (or Agent franchisee location)
to an individual consumer that is considered a consumer loan or the
equivalent (as defined by relevant local law); provided that, such loan
shall not exceed $5,000.00 per each such loan or advance or $10,000.00 in
the aggregate at any time outstanding to any one Person (including a spouse
or any relative living in the same household) and the proceeds of such loan
or advance are borrowed by such Person for personal or household purposes
and not for business purposes."
F. Section 8.1.K. Amendment. Section 8.1.K. set forth in the First
Amendment is amended and restated in its entirety to read as follows:
"K. Cross-Default. The occurrence of a default or event of default
-------------
(as defined in the relevant agreement, including application of any notice
or grace period) by Agent or its Subsidiaries under the terms of any of the
following: (i) any Collection Agreement; (ii) any Indebtedness of Agent or
its Subsidiaries; (iii) any leases of real property used for executive and
regional offices of Agent and for locations of Centers, or other leases
pursuant to the terms of which Agent would incur annual aggregate payment
obligations of more than $200,000; (iv) the Principal Mutual Note Agreement
(and any promissory notes of Agent issued pursuant thereto); (v) any
Beneficiary Agreement (and any notes or instruments of Agent issued
pursuant thereto); (vi) the Intercreditor Collateral Trust Agreement; or
(vii) the Wilmington Trust Security Documents."
G. Section 8.2 Amendment. So long as the Intercreditor Collateral
Trust Agreement shall be in full force and effect, the parties acknowledge and
agree that any foreclosure upon the Assets of Agent or its Subsidiaries and
payment of the proceeds thereof to Amex as permitted by the applicable
provisions of Section 8.2 of the First Amendment or any Security Document will
be subject to the provisions relating to lien subordination and collateral
proceeds distribution set forth in the Intercreditor Collateral Trust Agreement.
H. Section 9.2 Amendments. The definitions set forth in Section 9.2
of the First Amendment (including as amended
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pursuant to the Second Amendment) shall be further amended (and restated, as
applicable) as follows:
"Affiliate". Of any Person, means any other Person who (a) directly
---------
or indirectly, controls, is controlled by or is under common control with
such Person, or (b) directly or indirectly owns a five percent (5%) or
greater legal or beneficial interest in such Person; provided that,
irrespective of the ownership percentage interest or control that IPS or
its Affiliates may have therein, MoneyGram Payment Systems, Inc., a
Delaware corporation, shall not be considered an Affiliate of IPS or its
Affiliates if the common stock of MoneyGram Payment Systems, Inc. is
publicly traded, or (c) is an officer or director of such Persons.
"Beneficiary". Has the meaning set forth in the Intercreditor
-----------
Collateral Trust Agreement.
"Beneficiary Agreement". Has the meaning set forth in the
---------------------
Intercreditor Collateral Trust Agreement.
"Centers". Means all of Agent's places of business as identified on
-------
Schedule 9 (as amended from time to time) and such additional places of
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business of Agent permitted in accordance with the provisions of Section
6.2 of the First Amendment (as such Section 6.2 is amended) or otherwise
approved by Amex in writing from time to time in its sole discretion.
"Centers" shall not include any locations or places of business franchised
by Agent or any of its Subsidiaries (as franchisor) so long as such
franchisee is not offering or selling Money Orders as a subagent of Agent
pursuant to the Master Agreement.
"Employee Stock". Means up to 1,170,000 shares of Agent's common
--------------
voting Stock issued pursuant to the exercise of stock options granted to
employees or directors of Agent pursuant to the Option Plan.
"Indebtedness". Means, with respect to any Person, any and all
------------
liabilities and obligations of such Person, which, in accordance with GAAP,
would be classified as indebtedness, whether made available to such Person
in the form of a derivative debt instrument or agreement or one or more
letters of credit, including standby letters of credit, or whether such
liabilities or obligations are direct or indirect, primary or secondary,
contingent, as surety or otherwise, including Capital Leases.
"IPO"; "IPO Event"; and "IPO Proceeds". The definitions of "IPO",
--- --------- ------------
"IPO Event"; and "IPO Proceeds" no longer have any application for purposes
of the Master Agreement.
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"IPS." Means Integrated Payment Systems Inc., a Delaware corporation.
---
"Intercreditor Collateral Trust Agreement." Has the meaning set
----------------------------------------
forth in Recital I of the Third Amendment.
"Money Orders." Has the meaning assigned to such term in Section 1
------------
(as amended or restated) of the Money Order Trust Agreement and,
additionally, shall be deemed to refer to any substitute money order or
similar payment instrument permitted pursuant to Section 4.3 of the 1992
Master Agreement (as said Section 4.3 is amended at Section 1.1.D. of the
Third Amendment).
"MoneyGram Agency and Trust Agreement." The parties acknowledge and
------------------------------------
agree that at such time as the party other than Agent for purposes of the
MoneyGram Agency and Trust Agreement is not Amex or IPS or its Affiliates,
the definition of "MoneyGram Agency and Trust Agreement" shall be deemed
deleted and without any further application thereafter for purposes of the
Master Agreement.
"1996-1 Letter Agreement." Has the meaning set forth in Recital F of
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the Third Amendment.
"1996 MoneyGram/SM/ Master Agreement." Has the meaning set forth in
-----------------------------------
the 1996-1 Letter Agreement, and includes any amendments to such master
agreement.
"Permitted Financial Obligations." Subclause (k) of the definition of
-------------------------------
"Permitted Financial Obligations" no longer has any application by reason
of the deletion of Section 10.3 of the 1992 Master Agreement (as said
Section 10.3 was set forth at Section 1.3 of the First Amendment) pursuant
to the Second Amendment (at Section 1.1.M. thereof). Subclause (m) of the
definition of "Permitted Financial Obligations" set forth in the First
Amendment (as such subclause (m) is amended and restated at Section 1.2.R.
of the Second Amendment) is amended and restated in its entirety to read as
follows:
"(m) Indebtedness (i) incurred up to the aggregate principal
amount outstanding at any time or from time to time of initially up to
$20,000,000 pursuant to and as permitted by the Principal Mutual Note
Agreement (after taking into account any scheduled or mandatory
repayment(s) thereof), or (ii) incurred by Agent pursuant to a
Beneficiary Agreement to which Amex has consented (in its absolute
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discretion) in writing; provided that, any Lien or security interest
securing such obligation shall be subject to and governed by the
Intercreditor Collateral Trust Agreement and the Wilmington Trust
Security Documents.
"Preliminary Prospectus." The definition of "Preliminary Prospectus"
----------------------
is not considered to have any further application.
"Principal Mutual." Has the meaning set forth in Recital G of the
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Third Amendment.
"Principal Mutual Note Agreement." Has the meaning set forth in
-------------------------------
Recital G of the Third Amendment.
"Refinancing Period." The definition of "Refinancing Period" is not
------------------
considered to have any further application.
"Registration Statement." The definition of "Registration Statement"
----------------------
is not considered to have any further application.
"Third Amendment." Means the Third Amendment to the 1992 Master
---------------
Agreement dated as of November 15, 1996, between Amex and Agent, as it
thereafter may be amended.
"Trust Funds." Has the meaning set forth in the Money Order Trust
-----------
Agreement and shall be deemed to include "Proceeds" (as defined in the
MoneyGram Agreement) when the context so requires; provided that, such term
shall not be deemed to include "Proceeds" at such time as the party other
than Agent to the 1996 MoneyGram/SM/ Master Agreement shall be a Person
other than Amex or IPS or its Affiliates.
"Wilmington Trust." Has the meaning set forth in Recital I of the
----------------
Third Amendment.
"Wilmington Trust Security Documents." Has the meaning set forth in
-----------------------------------
Recital I of the Third Amendment.
Section 1.3. Amendment to Master Agreement. Notwithstanding any provision
to the contrary contained in the Master Agreement or in any other Security
Document (excluding the 1996 MoneyGram/SM/ Master Agreement, the Intercreditor
Collateral Trust Agreement and the Wilmington Trust Security Documents), each
and all unpaid Obligations due Amex or any permitted assignee shall be due and
payable on (i) the agreed maturity date of such Obligation(s) or (ii) the date
the Master Agreement shall expire or shall be terminated, whichever of
subclauses (i) or (ii) shall first occur.
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ARTICLE II
PRINCIPAL MUTUAL NOTE AGREEMENT
Section 2.1. Consent to Principal Mutual Indebtedness. Provided that the
requirements of Sections 2.2 and 2.3 below shall be satisfied and the loan to
Agent pursuant to the Principal Mutual Note Agreement shall be used to pay the
Revolving Commitment Advances, together with accrued but unpaid interest thereon
and costs and fees, outstanding at the date of such loan, Amex consents to
Agent's and its Subsidiaries' execution and delivery of the Principal Mutual
Note Agreement (and promissory notes issued pursuant thereto), the Intercreditor
Collateral Trust Agreement and the Wilmington Trust Security Documents, and such
agreements, documents and instruments shall be considered as approved exceptions
for purposes of the provisions of Section 25 of the 1992 Master Agreement and
Sections 6.2.A., 6.2.G., 6.2.L.(iv), 6.2.N.(xi) and 6.2.P. of the First
Amendment and any and all other provisions of the Master Agreement and the other
Security Documents that may be considered violated by Agent's execution and
delivery of such agreements, documents or instruments but for the consent
contained in this Section 2.1.
Section 2.2. Repayment of Revolving Commitment Advances. At such time as
Agent shall enter into the Principal Mutual Note Agreement and shall be entitled
to make a draw upon such credit facility, Agent immediately shall cause a
portion of the loan of funds pursuant to such agreement to be paid directly to
Amex in an amount equal to all Revolving Commitment Advances outstanding at the
date of such payment, together with accrued but unpaid interest thereon and
associated costs and fees, if any.
Section 2.3. Execution and Delivery of Wilmington Trust Documents.
Contemporaneously with their execution and delivery of this Third Amendment,
Amex and Agent and its Subsidiaries shall each execute and deliver, as required
by Amex and/or Principal Mutual, respectively, the Intercreditor Collateral
Trust Agreement and each of the Wilmington Trust Security Documents, and Agent
shall cause Principal Mutual and Wilmington Trust to execute and deliver the
Intercreditor Collateral Trust Agreement and each of the Wilmington Trust
Security Documents, as applicable.
Section 2.4. Default and Covenant Not to ▇▇▇. Upon the occurrence of an
Event of Default and during its continuance, Agent acknowledges that Amex shall
have no obligation to make any Advance or Revolving Commitment Advance pursuant
to the Master Agreement or to consider any Advance Request or Revolving
Commitment Advance Request from Agent, and, during such continuance period, any
obligation of Amex to Agent under or in respect of any such request or related
commitment is deemed suspended until such Event of Default shall have been
cured.
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Notwithstanding the fact that Amex may honor any Advance Request or Revolving
Commitment Advance Request made by Agent during the suspension of any such
facility or commitment, Amex nonetheless shall be entitled to refuse to consider
or honor any future Advance Request or Revolving Commitment Advance Request at
any time and from time to time in its sole and absolute discretion as Amex may
consider appropriate, and no course of dealing or implied agreement shall be
considered to have been established by reason of any Advance or Revolving
Commitment Advance made by Amex in response to any such Advance Request or
Revolving Advance Commitment Request after the occurrence of an Event of Default
and during its continuance notwithstanding Amex's entitlement to refuse to
consider or honor any such request. Agent acknowledges and agrees that Amex's
exercise of discretion in such regard will be in Amex's sole and absolute
discretion, and Agent agrees that neither it nor any of its Subsidiaries shall
commence or bring, directly or indirectly, any action or proceeding for any
legal or equitable remedy or relief based on a claim, irrespective of the kind,
nature, theory or basis for such claim, against Amex for any act, action or
omission on the part of Amex that is permitted or authorized by the provisions
of this Section 2.4 or elsewhere in the Master Agreement with respect to the
subject matter of this Section 2.4. Nothing contained in this Section 2.4 shall
be interpreted as or deemed to impose any limit or restriction on the exercise
by Amex of any of its rights or remedies under the Master Agreement upon the
occurrence and during the continuance of an Event of Default.
Section 2.5. Agreement to Alternative Security Arrangements. So long as
each of the Intercreditor Collateral Trust Agreement and Wilmington Trust
Security Documents shall continue in full force and effect and Agent shall
comply with the provisions thereof, Agent shall be considered in compliance with
the provisions of the Master Agreement and other Security Documents as to any
Lien or security interest required to be granted to and maintained in favor of
Amex pursuant to the Master Agreement. At such time as the Intercreditor
Collateral Trust Agreement and the Wilmington Trust Security Documents shall no
longer be in force and effect, the provisions of this Section 2.5 shall be
deemed without any further force or effect (unless Amex in its sole discretion
expressly agrees otherwise) and Agent, thereupon, shall comply strictly with all
requirements set forth in the Security Documents. Nothing contained in this
Section 2.5 shall be interpreted as changing or providing for any moratorium or
extension with respect to any payment date or due date as to any Obligations set
forth in the Master Agreement. Further, for purposes of clarification,
"Security Documents" (as defined in Section 9.2 of the First Amendment) shall
not include the Principal Mutual Note Agreement or any other Beneficiary
Agreement (other than the Master Agreement), and, so long as such agreements and
documents continue in full force and effect, the Intercreditor Collateral Trust
Agreement and the Wilmington Trust Security
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Documents (to the extent the provisions thereof are for the benefit of Amex)
shall be considered "Security Documents" for purposes of the Master Agreement.
Section 2.6. Effect of Wilmington Trust Documents. The parties
acknowledge and agree that no provision contained in any of the Intercreditor
Collateral Trust Agreement or the Wilmington Trust Security Documents shall be
considered to amend or otherwise provide or serve as a basis for interpreting
any provision, term or covenant contained in the Master Agreement or any other
Security Document, except as expressly set forth in Section 2.5 above.
ARTICLE III
REPRESENTATIONS AND COVENANTS
Section 3.1. Acknowledgement. Agent acknowledges, states represents,
warrants and confirms that it has no claims against Amex based on breach,
default or non-performance under or in respect of the Master Agreement or any
Security Document as of the date of this Third Amendment, and, therefore, Agent
further acknowledges, represents, admits and confirms that it does not have any
legal right, basis or theory of any kind of nature whatsoever on which to base,
invoke or obtain legal or equitable relief, whether injunctive or otherwise, in
order to ▇▇▇▇▇, postpone or terminate enforcement by Amex of any of the
Obligations or other obligations, undertakings and covenants arising from the
Master Agreement or any other Security Documents up to and including the date of
the execution and delivery of this Third Amendment by Amex and Agent.
Section 3.2. No Defaults. Agent represents to Amex that there is not
currently existing any action, event, condition, fact or set of circumstances
which would constitute an Event of Default or Potential Default under or in
respect of the Master Agreement or any Security Document by reason of any
action, inaction or omission of Agent in respect thereof, except as set forth in
Schedule 3.2 (Third Amendment) attached hereto.
Section 3.3. Revised Schedules. Attached to this Third Amendment are the
following revised schedules:
i) Schedule 5 (Section 5 of the First Amendment other than as to
Section 5.9 thereof which is no longer applicable);
ii) Litigation Schedule (Section 5.12 of the First Amendment, as
amended);
iii) Schedule 6 (Section 6.2 of the First Amendment, as amended);
and
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iv) Schedule 9 (Section 5 of the First Amendment, as amended).
as of the date of the execution and delivery of this Third Amendment by Agent,
and the same shall be deemed substituted for the schedules previously provided
to Amex for purposes of the First Amendment (as in effect prior to the date of
the Third Amendment).
Section 3.4. Additional Schedules and List. Agent represents that (i)
attached to this Third Amendment as Schedule 3.4 (Third Amendment) is a true,
correct and complete list of all Subsidiaries of Agent, including their
respective states of incorporation and the jurisdictions in which they are
qualified to do business or in which any of their Assets are located, and (ii)
the list of the jurisdictions set forth in Section 27 of the 1992 Master
Agreement (as said list for purposes of Section 27 is amended and restated at
Section 1.1.J. of this Third Amendment) is a true, correct, and complete list of
all the jurisdictions in which Agent conducts business or in which any of its
Assets are located as of the date of this Third Amendment. Such list shall be
updated at the same time as the schedules referred to in Section 3.3 shall be
updated in the future pursuant to the Master Agreement.
Section 3.5. Closing Deliveries by Agent. Agent shall make the following
deliveries:
A. Upon Execution. At or contemporaneously with its execution and
delivery of this Third Amendment, Agent shall pay all outstanding legal fees due
Amex's outside counsel in respect of this Third Amendment, and Agent shall
deliver to Amex the following:
(1) Certificate of Corporate Action by Agent. A certificate of
----------------------------------------
the Secretary or an Assistant Secretary of Agent, dated as of the date of
Agent's execution and delivery of this Third Amendment, attesting to all
corporate actions taken by Agent, including certified resolutions of Agent's
Board of Directors, authorizing the execution, delivery and performance of Agent
in respect of the Principal Mutual Note Agreement, the documents referred to in
Section 6.2.T. of the First Amendment (as said Section 6.2.T. is set forth at
Section 1.2.E. of this Third Amendment), this Third Amendment and each other
document delivered or to be delivered pursuant to this Third Amendment.
(2) Incumbency and Signature Certificate. A certificate of the
------------------------------------
Secretary or an Assistant Secretary, dated the same date as the certificate
provided pursuant to subclause (1) immediately preceding, certifying the names
and true signatures of the officers of Agent authorized to execute this Third
Amendment
- 15 -
and any other documents to be delivered by Agent pursuant to the Master
Agreement or any Security Document.
(3) Financing Statements. UCC Financing Statements in proper
--------------------
form for filing and executed by Ace Cash Express, Inc. (and also in its
tradenames) for the following jurisdictions: Indiana and Washington.
ARTICLE IV
GENERAL
Section 4.1. Effective Date of Amendments. Any amendment to either the
1992 Master Agreement or the First or Second Amendments effected or implemented
by this Third Amendment shall be deemed effective as of the date of this Third
Amendment, unless another date is expressly provided therefor.
Section 4.2. No Waiver. Notwithstanding the fact that the warranties and
representations set forth in, or Schedules attached to, this Third Amendment at
the date of its execution or in any delivery made or to be made pursuant to this
Third Amendment at the date thereof may take into account changes in the
circumstances from the Effective Date of the 1992 Master Agreement through the
date of this Third Amendment or such delivery, nothing contained in this Third
Amendment or any other Security Document delivered pursuant hereto shall be
deemed to constitute a waiver or consent on the part of Amex with respect to any
Event of Default or Potential Default under or in respect of the Master
Agreement that existed prior to or at the date of this Third Amendment, unless
such Event of Default or Potential Default shall have been waived or consented
to expressly in this Third Amendment or as set forth in a separate writing.
Section 4.3. Waiver of Defaults. Amex hereby waives the Events of Default
or Potential Defaults or event of default or defaults set forth and described on
Schedule 3.2 (Third Amendment) attached to this Third Amendment, but only to the
extent expressly set forth on and adequately described in such schedule and not
otherwise.
Section 4.4. Master Agreement. This Third Amendment is not intended to,
and shall not, affect or impair any rights or obligations of Agent or Amex under
the Master Agreement (as in effect immediately prior to the date of this Third
Amendment) to the extent that the same do not conflict with or are not
inconsistent with the terms of this Third Amendment. Except as otherwise
provided for in this Third Amendment or pursuant hereto, all other provisions of
the Master Agreement shall continue in full force and effect, and the parties
hereby reaffirm and confirm said Master Agreement as continuing and binding on
each party and in full force and effect, provided, however, in the event of any
--------- --------
- 16 -
conflict or inconsistency between the terms of this Third Amendment and either
the 1992 Master Agreement, the First Amendment, the Second Amendment or any
other amendment of any of thereof preceding the date of this Third Amendment,
the provisions of this Third Amendment shall control.
Section 4.5. Capitalized Terms. Capitalized terms used herein shall have
the meanings ascribed to them in the Master Agreement, including as
supplemented, amended or modified pursuant to this Third Amendment.
Section 4.6. Survival. All warranties, representations, and covenants
made by Agent in this Third Amendment or in any certificate or other exhibit
schedule or instrument delivered by Agent pursuant to or as required by this
Third Amendment shall be considered to have been relied upon by Amex and shall
survive the delivery to Amex of any such document or any extension of the
Obligations (or any part thereof) regardless of any investigation made by or on
behalf of Amex.
Section 4.7. Amendment. This Third Amendment may not be amended or
modified, except by a written instrument signed by all the parties.
Section 4.8. Counterparts. This Third Amendment may be executed and
delivered in counterparts, all of which when taken together shall constitute the
Third Amendment. Delivery of an executed signature page by any of the parties
by facsimile transmission shall be execution and delivery of this Third
Amendment for all purposes hereof. Notwithstanding execution and delivery of
this Third Amendment by facsimile transmission as provided above, the parties
shall undertake to provide each other with original executed copies of this
Third Amendment within two (2) Business Days following the execution date of
this Third Amendment. In making proof of this Third Amendment, it shall not be
necessary to produce or account for more than one such counterpart.
(Signatures On Next Page)
- 17 -
IN WITNESS WHEREOF, the parties have caused this Third Amendment to be
signed by their authorized officers or agent as of the date first above written.
ACE CASH EXPRESS, INC.
(a Texas corporation)
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date Signed:
------------------------
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
By: Integrated Payment Systems Inc. (Agent)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date Signed:
----------------------------
- 18 -
THIRD AMENDMENT TO 1992 MASTER AGREEMENT
BETWEEN
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
AND
ACE CASH EXPRESS, INC. AND ITS SUBSIDIARIES
Schedule 3.2 (Third Amendment)
Events of Default or Potential Defaults
Waived by Amex
(See attached Request for Waiver dated December 4, 1996)
THIRD AMENDMENT TO 1992 MASTER AGREEMENT
BETWEEN
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
AND
ACE CASH EXPRESS, INC. AND ITS SUBSIDIARIES
Schedule 3.4 (Third Amendment)
List of Subsidiaries
Other Jurisdiction(s)
in Which Qualified to
State of do Business or
Name of Subsidiary Incorporation Assets Located
------------------ ------------- ---------------------
1
-
1. Check Express, Inc. Florida None
2. Check Express Florida, Inc. Florida None
3. Check Express USA, Inc. Florida None
4. Check Express Finance, Inc. Florida None
5. Check-X-Change Corporation California None
6. Check Express South Carolina, Inc. Florida None
7. Peterlyn, Inc. Washington None
THIRD AMENDMENT TO 1992 MASTER AGREEMENT
BETWEEN
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
AND
ACE CASH EXPRESS, INC. AND ITS SUBSIDIARIES
EXHIBIT A
Form of Advance Request and Certification
ADVANCE REQUEST AND CERTIFICATION
Reference is made to that certain 1992 Master Agreement, as amended ("Master
Agreement"), between Ace Cash Express, Inc. ("Agent") and American Express
Travel Related Services Company, Inc. ("Amex"). Capitalized terms used herein
and not defined herein shall have the meanings ascribed to them in the Master
Agreement.
Pursuant to the terms of the Master Agreement, Agent hereby requests an
Advance pursuant to Section 3.4 of the 1992 Master Agreement (as said Section
3.4 is amended from time to time) in the amount of $_______________.
Agent's cash needs for the ______-day period are $___________ (net of
available cash).
After the taking of such Advance, Agent will not be in violation of the
Maximum Amount limitations imposed by Sections 3.4.1 and 3.5 (as each such
section has been amended) set forth in the 1992 Master Agreement.
Coverage Ratio Computation:
A. Amex Indebtedness:
-----------------
Total Trust Funds (excluding Proceeds) Pending
Remittance and Aggregate Unpaid Advances
$_________
B. Liquid Security Amount/1/:
----------------------
(1) Collected and Uncollected Balances of Deposit
Accounts/2/ $_________
(2) Deposits in Transit/2/ _________
(3) Cash Equivalents and Other Liquid Assets/2/ _________
(4) Cash in Centers/3/ _________
Total Liquid Security Amount $_________
C. Coverage Ratio: A : B
-------------- --- ---
Advances Outstanding Limitation:
Agent hereby certifies to Amex that the Advance requested above, together with
the outstanding principal balance of all Advances previously made to Agent by
Amex, does not exceed the limitation on Advances outstanding imposed pursuant to
Section 3.5.2 of the 1992 Master Agreement (as said Section 3.5.2 is amended and
restated at Section 1.1.K. of the Second Amendment).
Agent hereby certifies to Amex that the foregoing is true, correct, accurate
and complete.
---------------
/1/ Computed in accordance with the provisions of Section 3.5.1 of the 1992
Master Agreement (as said Section 3.5.1 is amended from time to time).
/2/ Limited to items in which Amex has a perfected first priority security
interest.
/3/ Limited to aggregate amount equal to number of Agent locations multiplied
by $25,000.
- 22 -
Dated: ___________, 199__ ACE CASH EXPRESS, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------