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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JULY 30, 2004
BY AND AMONG
ACE CASH EXPRESS, INC.,
AS BORROWER
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT, CO-LEAD ARRANGER, JOINT BOOK RUNNER AND AS A LENDER,
JPMORGAN CHASE BANK, AS SYNDICATION AGENT AND AS A LENDER
▇.▇. ▇▇▇▇▇▇ SECURITIES, INC., AS JOINT BOOK RUNNER AND CO-LEAD ARRANGER,
U.S. BANK, NATIONAL ASSOCIATION,
BANK OF AMERICA, N.A.,
AND
UNION BANK OF CALIFORNIA, N.A.
AS CO-DOCUMENTATION AGENTS AND AS LENDERS,
KEYBANK NATIONAL ASSOCIATION,
AS SENIOR MANAGING AGENT AND AS A LENDER,
AND
THE OTHER LENDERS PARTY HERETO
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS.......................................................................................... 1
SECTION 1.01. Certain Defined Terms................................................................. 1
SECTION 1.02. Accounting Terms; Financial Covenants................................................. 21
SECTION 1.03. Miscellaneous......................................................................... 21
ARTICLE II. THE LOANS........................................................................................... 21
SECTION 2.01. The Total Commitments................................................................. 21
SECTION 2.02. Loans................................................................................. 23
SECTION 2.03. Notice of Revolving Credit Loans and Seasonal Revolving Credit Loans; Funding
of Loans.............................................................................. 24
SECTION 2.04. Notes; Repayment of Loans............................................................. 25
SECTION 2.05. Interest on Loans..................................................................... 26
SECTION 2.06. Fees.................................................................................. 27
SECTION 2.07. Termination or Reduction of the Total Revolving Credit Commitment; Termination
of Seasonal Revolving Credit Commitment............................................... 27
SECTION 2.08. Interest after Default; Alternate Rate of Interest.................................... 28
SECTION 2.09. Prepayment of Loans................................................................... 29
SECTION 2.10. Increased Costs....................................................................... 30
SECTION 2.11. Break Funding Payments................................................................ 31
SECTION 2.12. Taxes................................................................................. 31
SECTION 2.13. Payments Generally; Pro Rata Treatment, Sharing of Set-offs........................... 33
SECTION 2.14. Letters of Credit..................................................................... 34
ARTICLE III. REPRESENTATIONS AND WARRANTIES..................................................................... 39
SECTION 3.01. Organization; Legal Existence......................................................... 39
SECTION 3.02. Authorization......................................................................... 39
SECTION 3.03. Governmental Approvals................................................................ 39
SECTION 3.04. Binding Effect........................................................................ 39
SECTION 3.05. Material Adverse Effect; Default...................................................... 40
SECTION 3.06. Litigation; Compliance With Laws; Etc................................................. 40
SECTION 3.07. Financial Statements.................................................................. 40
SECTION 3.08. Federal Reserve Regulation............................................................ 41
SECTION 3.09. Taxes................................................................................. 41
SECTION 3.10. Employee Benefit Plans................................................................ 41
SECTION 3.11. No Material Misstatements............................................................. 43
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act............................ 43
SECTION 3.13. Use of Proceeds....................................................................... 43
SECTION 3.14. Subsidiaries.......................................................................... 43
SECTION 3.15. Title to Properties; Possession Under Leases; Trademarks.............................. 43
SECTION 3.16. Solvency.............................................................................. 44
SECTION 3.17. Permits, Etc.......................................................................... 45
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SECTION 3.18. Compliance with Environmental Laws.................................................... 45
SECTION 3.19. Labor Matters......................................................................... 45
SECTION 3.20. Side Agreements....................................................................... 46
SECTION 3.21. GENERAL............................................................................... 46
ARTICLE IV. CONDITIONS OF CREDIT EVENTS......................................................................... 47
SECTION 4.01. All Credit Events..................................................................... 47
SECTION 4.02. First Credit Event.................................................................... 47
ARTICLE V. AFFIRMATIVE COVENANTS................................................................................ 50
SECTION 5.01. Legal Existence....................................................................... 50
SECTION 5.02. Businesses and Properties............................................................. 50
SECTION 5.03. Insurance............................................................................. 51
SECTION 5.04. Taxes................................................................................. 51
SECTION 5.05. Financial Statements, Reports, Etc.................................................... 51
SECTION 5.06. Litigation and Other Notices.......................................................... 53
SECTION 5.07. ERISA................................................................................. 54
SECTION 5.08. Maintaining Records; Access to Properties and Collateral; Inspections................. 54
SECTION 5.09. Use of Proceeds....................................................................... 55
SECTION 5.10. [RESERVED]............................................................................ 55
SECTION 5.11. Additional Guarantors and Pledge of Assets............................................ 55
SECTION 5.12. Environmental Legislation............................................................. 56
SECTION 5.13. Pay Obligations to Lenders and Perform Other Covenants................................ 56
SECTION 5.14. Assurances............................................................................ 57
SECTION 5.15. Certain Changes....................................................................... 57
SECTION 5.16. Assignment of Leases.................................................................. 57
SECTION 5.17. Third-Party Payables.................................................................. 57
SECTION 5.18. Interest Rate Hedging................................................................. 57
SECTION 5.19. Compliance with Agreements............................................................ 58
ARTICLE VI. NEGATIVE COVENANTS.................................................................................. 58
SECTION 6.01. Liens................................................................................. 58
SECTION 6.02. Sale and Lease-Back Transactions...................................................... 60
SECTION 6.03. Indebtedness for Borrowed Money and Guarantees........................................ 60
SECTION 6.04. Equity Interest in Subsidiaries Equity Interests in Borrower.......................... 60
SECTION 6.05. Consolidations, Mergers and Sales of Assets........................................... 61
SECTION 6.06. Loans and Advances.................................................................... 61
SECTION 6.07. Net Worth............................................................................. 62
SECTION 6.08. EBITDA................................................................................ 62
SECTION 6.09. Debt to EBITDA Ratio.................................................................. 62
SECTION 6.10. Cash Flow Coverage Ratio.............................................................. 62
SECTION 6.11. Use of Proceeds....................................................................... 62
SECTION 6.12. ERISA................................................................................. 62
SECTION 6.13. Modifications of Certain Indebtedness; Other Agreements............................... 63
SECTION 6.14. Transactions with Affiliates.......................................................... 63
SECTION 6.15. Other Agreements...................................................................... 63
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SECTION 6.16. Restricted Payments................................................................... 63
SECTION 6.17. Limitation on Investments............................................................. 64
SECTION 6.18. Change in Business.................................................................... 65
SECTION 6.19. Capital Expenditures................................................................. 65
SECTION 6.20. Deposit Accounts and Armored Couriers................................................. 65
SECTION 6.21. ACE Funding........................................................................... 65
SECTION 6.22. Restrictive Agreements................................................................ 66
SECTION 6.23. Miscellaneous......................................................................... 66
ARTICLE VII. EVENTS OF DEFAULT.................................................................................. 66
ARTICLE VIII. ADMINISTRATIVE AGENT.............................................................................. 70
ARTICLE IX. MISCELLANEOUS....................................................................................... 73
SECTION 9.01. Notices............................................................................... 73
SECTION 9.02. Waivers; Amendments................................................................... 74
SECTION 9.03. Expenses; Indemnity, Damage Waiver.................................................... 75
SECTION 9.04. Successors and Assigns................................................................ 76
SECTION 9.05. Survival.............................................................................. 79
SECTION 9.06. Counterparts; Integration; Effectiveness.............................................. 79
SECTION 9.07. Severability.......................................................................... 79
SECTION 9.08. Right of Set-off...................................................................... 80
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process............................ 80
SECTION 9.10. WAIVER OF JURY TRIAL.................................................................. 80
SECTION 9.11. Headings.............................................................................. 81
SECTION 9.12. Confidentiality....................................................................... 81
SECTION 9.13. Interest.............................................................................. 82
SECTION 9.14. USA PATRIOT Act Notice................................................................ 83
SECTION 9.15. Nonapplicability of Chapter 346 et seq................................................ 83
SECTION 9.16. Waiver of Consumer Rights............................................................. 83
SECTION 9.17. Entire Agreement...................................................................... 83
SECTION 9.18. Communications........................................................................ 84
SECTION 9.19. Amendment and Restatement of Existing Credit Agreement................................ 84
SECTION 9.20. Documentation Agent, Syndication Agent and Senior Managing Agent...................... 85
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EXHIBITS:
EXHIBIT A Form of Revolving Credit Notes
EXHIBIT B Form of Seasonal Revolving Credit Notes
EXHIBIT C Form of Borrowing Base Report
EXHIBIT D Form of Borrowing Notice
EXHIBIT E Form of Omnibus Confirmation Agreement
EXHIBIT F-1 Form of Perfection Letter - Bank (Long Form)
EXHIBIT F-2 Form of Perfection Letter - Bank (Short Form)
EXHIBIT G Form of Perfection Letter - Courier
EXHIBIT H Form of Cash Holdings Report
EXHIBIT I Form of Compliance Certificate
EXHIBIT J Form of Assignment and Assumption
EXHIBIT K Form of Certificate of Update
EXHIBIT L Form of Perfection Certificate
SCHEDULES:
SCHEDULE 1 Pricing Grid
SCHEDULE 1.01 Existing Letters of Credit
SCHEDULE 2.01(a) Revolving Credit Commitments
SCHEDULE 2.01(b) Seasonal Revolving Credit Commitments
SCHEDULE 2.02(a) Domestic Lending Offices
SCHEDULE 2.02(b) Eurodollar Loan Lending Offices
SCHEDULE 3.06 Litigation
SCHEDULE 3.14 Subsidiaries
SCHEDULE 3.15(c) Intellectual Property
SCHEDULE 3.15(d) Deposit Accounts and Armored Couriers
SCHEDULE 3.18 Environmental
SCHEDULE 6.01 Existing Liens
SCHEDULE 6.02 Sale Leaseback Transactions
SCHEDULE 6.03 Existing Indebtedness
SCHEDULE 6.06 Existing Loans and Advances
SCHEDULE 6.17 Permitted Investments
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"), dated
as of July 30, 2004 is by and among ACE CASH EXPRESS, INC., a Texas corporation
(the "Borrower"), ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION ("WFB"), as
administrative agent for the Lenders (WFB, in such capacity, is herein referred
to as the "Administrative Agent"), Co-Lead Arranger and Joint Book Runner,
JPMORGAN CHASE BANK ("JPMCB"), as Syndication Agent, ▇.▇. ▇▇▇▇▇▇ SECURITIES,
INC., as Joint Book Runner and Co-Lead Arranger, U.S. BANK, NATIONAL
ASSOCIATION, BANK OF AMERICA, N.A. and UNION BANK OF CALIFORNIA, N.A., as
Co-Documentation Agents, KEYBANK NATIONAL ASSOCIATION, as Senior Managing Agent
and the lenders named in Schedule 2.01 hereto (collectively, together with all
successors and assigns, the "Lenders").
PRELIMINARY STATEMENTS
A. Pursuant to that certain Credit Agreement, dated as of March 31,
2003 (as amended, supplemented, restated, or otherwise modified, the "Existing
Credit Agreement"), by and among Borrower, ▇▇▇▇▇ Fargo Bank, National
Association as successor by consolidation to ▇▇▇▇▇ Fargo Bank Texas, National
Association, as Administrative Agent, and certain other financial institutions,
as lenders (the "Existing Lenders"), Existing Lenders provided Borrower with a
revolving credit and seasonal revolving credit facility;
B. The parties hereto wish to amend and restate the Existing Credit
Agreement, which amendment and restatement is in extension and renewal, and not
in extinguishment or novation, of certain of the indebtedness outstanding under
the Existing Credit Agreement, as herein provided, it being acknowledged and
agreed by the Borrower, on behalf of itself and its Subsidiaries (other than ACE
Funding), that the Indebtedness under this Agreement constitutes an extension
and renewal of certain of the outstanding indebtedness under the Existing Credit
Agreement, and that all Liens and Guaranty Agreements that secure the repayment
of such outstanding indebtedness under the Existing Credit Agreement shall
continue to secure Indebtedness under this Agreement;
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
AGREEMENT
ARTICLE I. DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below (such meanings to be
equally applicable to both the singular and plural of the terms defined):
"AAA" shall have the meaning set forth in Section 9.14(b) hereof.
"ABR Loans" shall mean any Loan bearing interest at an interest rate based
upon the Alternate Base Rate.
"Acceptable Acquisition" shall mean (i) any acquisition by the Borrower of
(x) all or substantially all of the business of or (y) the assets of, any
business entity (whatever corporate form and whether accomplished as an asset
acquisition or a stock purchase or acquisition of other forms of ownership
interests) engaged in the same business or a substantially similar line of
business, but only if (a) the purchase price of such acquisition (including the
amount of Indebtedness of the business entity or of the seller or sellers
assumed in connection therewith) is no more than $10,000,000 and (b) in the case
of an acquisition of all or substantially all of a business, such business
entity has either (I) positive EBITDA for the twelve (12) month period
immediately preceding the proposed date of such acquisition or (II) positive
Restated EBITDA for the twelve (12) month period immediately preceding the
proposed date of such acquisition (as determined by Administrative Agent and
Borrower), (ii) the Alpha Acquisition, or (iii) any other acquisition approved
by Required Lenders in their sole discretion.
"Acceptable Hedging Contract" shall have the meaning given to such term in
Section 5.18.
"ACE Funding" shall mean ACE Funding, LLC, a Delaware limited liability
company.
"ACE Funding Lender" shall have the meaning assigned to such term in
Section 6.21 hereof.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Loan or
Reference Rate Loan for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Adjustment Date" shall mean with respect to any calculation of the
Applicable Margin following each fiscal quarter, (i) with respect to the final
fiscal quarter in each fiscal year of the Borrower, the earlier of (a) the date
on which Borrower's audited financial statements for the applicable fiscal year
are required to be filed with the Securities Exchange Commission under
applicable law after the end of such fiscal year and (b) two (2) Business Days
after the Borrower has delivered such audited financial statements to
Administrative Agent with respect to such fiscal year as required under Section
5.05(a) and (ii) with respect to any other fiscal quarter, the earlier of (a)
the date which is forty five (45) days after the end of such fiscal quarter and
(ii) the date which is two (2) Business Days after the Borrower has delivered
the financial statements to Administrative Agent with respect to such fiscal
quarter as required under Section 5.05(b).
"Administrative Agent" shall have the meaning assigned to such term in the
preamble to this Agreement, and any successor Administrative Agent appointed
pursuant to the terms of this Agreement.
"Affiliate" of any Person shall mean any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person and, without limiting the generality of the foregoing, includes (a) any
Person which beneficially owns or holds ten percent (10%) or more of any class
of voting securities of such Person or ten percent (10%) or more of the equity
interest in such Person, (b) any Person of which such Person beneficially owns
or holds ten percent (10%) or more of any class of voting securities or in which
such
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Person beneficially owns or holds ten percent (10%) or more of the equity
interest in such Person and (c) any director, officer or employee of such
Person. For the purposes of this definition, the term "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agreement" shall mean this First Amended and Restated Credit Agreement,
as amended, modified, renewed or supplemented from time to time.
"Alpha Acquisition" means the acquisition of all or a portion of the
assets of an entity disclosed to the Administrative Agent in writing prior to
the Closing Date for an aggregate amount not to exceed $20,000,000.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus -1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Commitment Fee Rate" shall mean the rate of 0.50% per annum.
"Applicable Lending Office" shall mean, with respect to each Lender, such
Lender's Domestic Lending Office in the case of an ABR Loan and such Lender's
Eurodollar Lending Office in the case of a Eurodollar Loan or a Reference Rate
Loan.
"Applicable Margin" shall mean the margin to be added to the Alternate
Base Rate and Adjusted LIBO Rate which is equal to the applicable percentage
rate per annum set forth in the Pricing Grid for the applicable type of Loan
(i.e., ABR Loan, Reference Rate Loan, or Eurodollar Loan). On the Closing Date
and continuing through and including the day immediately preceding the first
Adjustment Date occurring after the Closing Date, the Applicable Margin shall be
the Applicable Margin for the applicable Type of Loan when the Debt to EBITDA
Ratio is greater than or equal to 1.50 to 1.00 but less than 1.75 to 1.00 and
for each period thereafter beginning on an Adjustment Date and ending on the day
immediately preceding the next succeeding Adjustment Date, the Applicable Margin
for the applicable Type of Loan set forth opposite the Debt to EBITDA Ratio as
determined at the end of the most recently ended fiscal quarter prior to the
applicable Adjustment Date.
"Applicable Percentage" shall mean, with respect to any Lender, the
percentage of the Total Commitments represented by such Lender's Total
Commitment. If the Total Commitments or any part thereof have terminated or
expired, the Applicable Percentages shall be determined based upon the Total
Commitments most recently in effect, giving effect to any assignments.
"Assessment Rate" shall mean, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance
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Corporation for insurance by such Corporation of time deposits made in dollars
at the offices of such member in the United States; provided that if, as a
result of any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"Assignment and Assumption" shall mean an assignment and assumption
entered into by a Lender and an assignee and accepted by the Administrative
Agent and the Borrower, in substantially the form of Exhibit J annexed hereto.
"Base CD Rate" shall mean the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"Borrower" shall have the meaning assigned to such term in the preamble to
this Agreement.
"Borrowing Base" shall mean the "Amount Available for Borrowing" on each
Borrowing Base Report, subject to verification by the Administrative Agent. The
calculation of the Borrowing Base shall utilize the eligibility criteria, rates
of advance, borrowing base factors and dollar ceilings for various components as
are specified on Exhibit C hereto and incorporated herein by reference.
"Borrowing Base Report" shall mean the Borrowing Base Report with respect
to Cash Holdings provided as Collateral to the Lenders by the Borrower and its
Subsidiaries (other than ACE Funding) in the form of Exhibit C hereto.
"Borrowing Notice" shall have the meaning assigned to such term in Section
2.03 hereof.
"Business Day" shall mean any day, other than a Saturday, Sunday or legal
holiday in the States of Texas and California on which banks are open for
substantially all their banking business in Dallas and San Francisco,
respectively; provided, however, if any determination of a "Business Day" shall
relate to a Eurodollar Loan or a Reference Rate Loan, the term "Business Day"
shall in addition exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
"Capital Expenditures" shall mean capital expenditures of the Borrower and
its Subsidiaries on a Consolidated basis, as computed and calculated in
accordance with GAAP, including, without limitation, all principal payments made
during the applicable period on Capitalized Lease Obligations.
"Capitalized Lease" shall mean, with respect to any Person, any lease or
any other agreement for the use of real and/or personal property which in
accordance with GAAP should be capitalized on the lessee's or user's balance
sheet.
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"Capitalized Lease Obligation" shall mean an obligation to pay rent or
other amounts under any Capitalized Lease, and for purposes hereof the amount of
such obligation shall be the capitalized amount thereof determined in accordance
with GAAP.
"Cash Flow Coverage Ratio" shall mean, in each case, with respect to the
Borrower and its Consolidated Subsidiaries: (a) the total without duplication,
during the twelve-month period preceding the applicable date of determination,
of (i) EBITDA, minus (ii) Federal, state and local income taxes actually paid,
minus (iii) total capital expenditures paid in cash, minus (iv) cash dividends
paid (other than cash dividends paid to the Borrower or any wholly-owned
Subsidiary of the Borrower that is a Guarantor or distributions paid by ACE
Funding to the Borrower), minus (v) treasury stock purchased, plus (v) rent
expense, divided by (b) the total without duplication during the same specified
twelve month period of (i) cash Interest Expense paid, plus (ii) the current
portion of all Capitalized Lease Obligations, plus (iii) the current portion of
all long-term debt, plus (iv) rent expense.
"Cash Holdings" shall mean the Borrower's cash in the Borrower's stores,
plus the Borrower's cash in the Borrower's depository accounts with
Administrative Agent, plus the Borrower's cash in the Borrower's depository
accounts with Other Financial Institutions, plus the amount of items of the
Borrower in clearing at the Administrative Agent and at Other Financial
Institutions, plus cash of the Borrower in transit with armored couriers.
"Cash Holdings Report" shall mean the Cash Holdings Report in the form of
Exhibit H hereto.
"Certificate of Update" shall mean a Certificate signed by a Responsible
Officer of the Borrower which sets forth any changes during the prior month to
Schedule 3.15(d) hereto, any of the Schedules attached to the Intercreditor
Agreement, or any of the Schedules attached to the Security Agreement,
substantially in the form of Exhibit K.
"Change in Control" shall mean (i) any transaction or series of related
transactions as a result of which any Person or Persons, including but not
limited to any "person" or "group" (as such terms are used in sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
other than the Permitted Investors, acquires beneficial ownership (as defined in
Rules 13(d)-3 and 13(d)-5 under the Exchange Act) on a fully-diluted basis of
30% or more of (a) the then outstanding shares of common stock of the Borrower
or (b) the combined voting power of the then outstanding voting securities of
the Borrower entitled to vote generally in the election of directors (provided,
however, that an underwritten public offering of the Borrower's common stock
registered under the Securities Act of 1933, as amended, that has been approved
by a majority of the Continuing Directors shall not be deemed to be a Change of
Control); (ii) any merger, consolidation, share exchange, sale of assets or
other reorganization to which the Borrower is a party and as a result of which
members of the Board of Directors in office immediately prior to such
transaction or event thereafter constitute less than a majority of the whole
Board of Directors; or (iii) the first day on which a majority of the members of
the Board of Directors of the Borrower is not constituted by Continuing
Directors. As used herein, "Continuing Directors" shall mean as of any date of
determination, the directors of the Borrower on the Closing Date and each other
individual becoming a director subsequent to the Closing Date whose election, or
nomination for election by the Borrower's stockholders, was
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approved by a vote of a majority of the Continuing Directors as of such date,
and "Permitted Investors" shall mean, collectively, (i) all officers of the
Borrower on the Closing Date, (ii) all members of the Board of Directors of the
Borrower on the Closing Date, (iii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (iv) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
(v) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and (vi) ▇▇▇▇▇▇ ▇. ▇▇▇▇ III.
"Change in Law" shall mean (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.10(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, or any successor Federal tax code, and any reference to any statutory
provision shall be deemed to be a reference to any successor provision or
provisions.
"Collateral" shall mean all assets, tangible or intangible, real, personal
or mixed, of the Borrower and each of its Subsidiaries other than ACE Funding
including, without limitation, all Deposit Accounts in which Cash Holdings or
any Subsidiary's Cash Holdings are maintained, all Cash Holdings and each
Subsidiary's Cash Holdings, and other cash, accounts receivable, instruments,
patents, trademarks, service marks, all other intellectual property, all
software whether purchased by or developed by the Borrower or any of its
Subsidiaries other than ACE Funding, general intangibles, furniture and
equipment of the Borrower and its Subsidiaries other than ACE Funding, and all
partnership interests, capital stock or other Equity Interests of each
Subsidiary of the Borrower other than ACE Funding, but excluding any assets held
by Borrower for the benefit of non-Affiliates in which no security interest or
other Lien may be granted, the Borrower's interest in any Indebtedness of ACE
Funding owed to the Borrower, and all assets or properties of ACE Funding.
"Commitment Fee" shall have the meaning set forth in Section 2.06 hereof.
"Compliance Certificate" shall mean the Financial Covenant and Compliance
Certificate with respect to financial and other covenants set forth in this
Agreement provided to the Lenders by the Borrower in the form of Exhibit I
hereto.
"Consolidated" shall mean, in respect of any Person, as applied to any
financial or accounting term, such term determined on a consolidated basis in
accordance with GAAP (except as otherwise required herein) for the Person and
all consolidated Subsidiaries thereof.
"Credit Documents" shall mean collectively, this Agreement, the Notes, the
Letters of Credit, the Guaranty Agreements, the Intercreditor Agreement, the
Security Documents, the Letter Agreements, the Lender Control Agreements, all
Hedging Contracts entered into by the Borrower or any of its Subsidiaries (other
than ACE Funding) with any Lender or any Affiliate of any Lender, all other
agreements, documents and instruments and other writings contemplated by this
Agreement, all assignments, deeds, guaranties, pledges, instruments,
certificates and
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agreements now or hereafter executed or delivered to Administrative Agent, or
any Lender pursuant to any of the foregoing, and all amendments, modifications,
renewals, extensions, increases and rearrangements of, and substitutions for,
any of the foregoing.
"Credit Event" shall mean each borrowing and each issuance of a Letter of
Credit hereunder.
"Credit Transactions" shall mean the execution, delivery and performance
by the Borrower and each Guarantor of the Credit Documents to which it is a
party, the borrowings and the issuance of Letters of Credit hereunder, and the
execution and delivery by the Borrower of the Notes (if any).
"Debt to EBITDA Ratio" shall mean, in each case with respect to the
Borrower and its Consolidated Subsidiaries, at any date of determination, the
ratio of (a) the Funded Indebtedness to (b) the EBITDA for the twelve month
period preceding such date of determination. For the purposes of calculating the
Debt to EBITDA Ratio only, the Indebtedness outstanding under this Agreement as
of any date of determination shall be deemed to be the arithmetic mean (i.e.,
average) amount outstanding hereunder during the thirty calendar days
immediately preceding such date of determination.
"Default" shall mean any condition, act or event which, with notice or
lapse of time or both, would constitute an Event of Default.
"Deferred Payment Obligations" shall mean the amount of the Borrower's (or
any of the Borrower's Subsidiaries') obligations to make payments to sellers of
either stock or assets pursuant to an Acceptable Acquisition, in periods
subsequent to the closing of such acquisition, provided, that, such obligations
are not subject to any contingencies with respect to future performance.
"Deposit Accounts" shall mean each demand, time, savings, passbook and
other like accounts (including any account evidenced by a non-negotiable
certificate of deposit), whether interest-bearing or not, and if
interest-bearing then all interest accrued and paid or payable thereon,
maintained by the Debtor or any of its Subsidiaries (other than ACE Funding),
and all moneys from time to time in or credited to any and all such deposit
accounts, including all earnings or profits therefrom in the form of interest or
otherwise.
"Dollars", "dollars" or the symbol "$" shall mean dollars in lawful
currency of the United States of America.
"Domestic Lending Office" shall mean, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite its
name in Schedule 2.02(a) annexed hereto, or such other office of such Lender as
such Lender may from time to time specify to the Borrower and the Administrative
Agent.
"EBITDA" shall mean, with respect to any Person for any period of
determination, the sum of (a) Net Income for such Person on a Consolidated
basis, plus (b) Interest Expense deducted in arriving at such Net Income, plus
(c) Federal, state and local income taxes deducted in arriving at such Net
Income, plus (d) depreciation, amortization and other non-cash charges
- 7 -
deducted in arriving at such Net Income as computed and calculated in accordance
with GAAP (excluding, however, any reserves or non-cash charges relating to, or
in respect of, Payday Loans or any other loan program administered by the
Borrower or its Subsidiaries), minus (e) extraordinary gains computed and
calculated in accordance with GAAP, plus (f) extraordinary losses computed and
calculated in accordance with GAAP.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Legislation" shall have the meaning assigned to such term
in Section 5.12(a) hereof.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary 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 Interest" of any Person shall mean any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any preferred
stock, but excluding any debt securities convertible into such equity, and
including, in the case of a partnership, partnership interests (whether general
or limited) and any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, such partnership.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder, as in effect from
time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) which would be treated together with the Borrower or any
Subsidiary of the Borrower, as a single employer under the provisions of Title I
or Title IV of ERISA.
"Eurodollar Loan" shall mean any Revolving Credit Loan bearing interest at
an interest rate based upon the LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in Article
VII hereof.
"Excluded Taxes" shall mean, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of
- 8 -
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 of America or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender, any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 2.12(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 Borrower with respect to such withholding
tax pursuant to Section 2.12(a).
"Existing Credit Agreement" shall have the meaning assigned to such term
in the Preliminary Statements hereof.
"Existing Lender" shall have the meaning assigned to such term in the
Preliminary Statements hereof.
"Existing Letters of Credit" means those Letters of Credit set forth on
Schedule 1.01.
"Eurodollar Lending Office" shall mean, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name in Schedule 2.02(a) annexed hereto, or such other office of such Lender as
such Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Eurodollar Loan" shall mean any Revolving Credit Loan bearing interest at
an interest rate based upon the LIBO Rate.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Final Maturity Date" shall mean June 30, 2008.
"Fiscal Year" shall mean the fiscal year of the Borrower and its
Subsidiaries for accounting purposes as designated by the Borrower to the
Administrative Agent from time to time.
"Foreign Lender" shall mean any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. 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.
- 9 -
"Funded Indebtedness" shall mean and include, as of any date of
determination (without duplication) (a) all obligations of the Borrower and its
Consolidated Subsidiaries for borrowed money, including but not limited to the
Loans (and all other outstanding amounts under the Total Commitment), other bank
debt, senior notes, and subordinated debt, (b) all obligations of the Borrower
and its Consolidated Subsidiaries evidenced by bonds, debentures, notes or
similar instruments (excluding Deferred Payment Obligations which are unsecured
and in an amount not to exceed $2,000,000 in the aggregate outstanding at any
time), (c) all obligations of the Borrower and its Consolidated Subsidiaries
upon which interest charges are customarily paid, (d) all contingent obligations
of the Borrower and its Consolidated Subsidiaries, (e) all Capitalized Lease
Obligations of the Borrower and its Consolidated Subsidiaries, and (f) the LC
Exposure and all other outstanding letters of credit issued for the account of
the Borrower and its Consolidated Subsidiaries, but shall exclude all amounts
owed by ACE Funding and all current accounts payable arising in the ordinary
course of business.
"GAAP" shall have the meaning assigned to such term in Section 1.02
hereof.
"Governmental Authority" shall mean the government of the United States of
America, any other nation or 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.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business
(including, but not limited to, third-party ▇▇▇▇ payment receipts and
remittances, money-transfer services, or money-order sales).
"Guarantor" shall mean, individually and collectively, each Person who
guaranties the Obligations, including, without limitation, each Subsidiary
(other than ACE Funding) of the Borrower which is or becomes a guarantor of the
Obligations on or after the date hereof.
"Guaranty Agreement" shall mean the First Amended and Restated
Unconditional Guaranty Agreement executed by each Guarantor of even date
herewith pursuant to which such Guarantor guaranties the payment of the
Obligations and the other therein described obligations of the Borrower.
- 10 -
"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.
"Hedging Contract" shall mean (a) any agreement providing for options,
swaps, floors, caps, collars, forward sales or forward purchases involving
interest rates, commodities or commodity prices, equities, currencies, bonds, or
indexes based on any of the foregoing (b) any option, futures, or forwarded
contract traded on an exchange, and (c) any other derivative agreement or other
similar agreement or arrangement.
"Indebtedness" of any Person, shall mean, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services, (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all Capitalized Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty, (j) all obligations of such Person in
respect of any Hedging Contract, and (k) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances, but shall not
include accounts payable which are not aged more that 120 days from the billing
date therefor. The Indebtedness of any Person shall include, but without
duplication, the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitees" shall have the meaning assigned to such term in Section
9.03(b) hereof.
"Information" shall have the meaning assigned to such term in Section 9.12
hereof.
"Intercreditor Agreement" shall mean that certain First Amended and
Restated Intercreditor Agreement dated as of the Closing Date by and among the
Borrower, the Administrative Agent, and Travelers, as the same may be amended,
restated or modified from time to time.
"Interest Expense" shall mean, with respect to any Person for any period,
the interest expense of such Person during such period determined in accordance
with GAAP.
"Interest Payment Date" shall mean (a) with respect to any Loan, the last
Business Day of each month commencing on the month following the Closing Date,
(b) with respect to any
- 11 -
Revolving Credit Loan, the Revolving Credit Termination Date, and (c) with
respect to any Seasonal Revolving Credit Loan, the Seasonal Revolving Credit
Termination Date.
"Interest Period" shall mean, (a) with respect to any Eurodollar Loan, the
period commencing on the date of such Eurodollar Loan and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect and (b) with respect to any
Reference Rate Loan, the period commencing on the date of such Reference Rate
Loan and ending on the numerically corresponding day in the calendar month that
is one month thereafter; provided, that (i) if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Loan or Reference Rate Loan that commences on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a borrowing of any Eurodollar Loan or Reference Rate Loan
initially shall be the date on which such borrowing is made and thereafter such
date shall be the effective date of the most recent conversion or continuation
of such borrowing. In no event shall any Interest Period end after the Final
Maturity Date.
"Investment" shall have the meaning assigned to such term in Section 6.17
hereof.
"Issuing Bank" shall mean WFB, in its capacity as the issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section
2.14(i). The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case
the term "Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.
"JPMCB" shall have the meaning assigned to such term in the preamble to
this Agreement.
"LC Disbursement" shall mean a payment made by the Issuing Bank to the
beneficiary of, and pursuant to, a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lender Control Agreement" shall mean any Letter Agreement in the form of
Exhibit F-1 or F-2 hereto or any other written agreement or other authenticated
record, whether executed prior to, on, or after the date hereof, pursuant to
which any Lender agrees to follow the instructions of the Administrative Agent
or Travelers with respect to any Deposit Account maintained by such Lender
without the further consent of the Borrower.
- 12 -
"Lenders" shall have the meaning assigned to such term in the preamble to
this Agreement.
"Letter Agreement" shall mean the letter agreements substantially in the
forms of Exhibits F-1, F-2, and G attached hereto (or any other similar
agreements in form and substance satisfactory to Administrative Agent in its
sole discretion).
"Letter of Credit" shall mean any letter of credit issued pursuant to this
Agreement and shall include the Existing Letters of Credit.
"LIBO Rate" shall mean, for any Interest Period, the rate appearing on
Page 3750 of the Dow ▇▇▇▇▇ Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service,
providing rate quotations comparable to those currently provided on such page of
such Service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the "LIBO
Rate" for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in
or on such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, Capitalized Lease or other title retention agreement relating to
such asset (or any financing having substantially the same economic effect as
any of the foregoing), (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities or (d) any
other right of or arrangement with any creditor to have such creditor's claim
satisfied out of such assets, or the proceeds therefrom, prior to the general
creditors of the owner thereof.
"Liquid Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from ▇▇▇▇▇'▇;
(c) investments in deposit accounts, certificates of deposit,
banker's acceptances and time deposits maturing within 180 days from the
date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts
- 13 -
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000 or any Lender;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above or any Lender; and
(e) money market funds that (i) comply with the criteria set forth
in Securities and Exchange Commission Rule 2a-7 under the Investment
Company Act of 1940, (ii) are rated AAA by S&P and Aaa by ▇▇▇▇▇'▇ and
(iii) have portfolio assets of at least $5,000,000,000.
"Loan" shall mean each advance under the Total Commitment to the Borrower
made pursuant to this Agreement, whether as a Reference Rate Loan, an ABR Loan,
or Eurodollar Loan.
"Loan and Servicing Agreement" shall mean that certain agreement between
and among Borrower, ACE Funding and ACE Funding Lender dated as of December 18,
2002, as in effect on the date hereof.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean (a) a material adverse effect upon
the Collateral or the business, assets, liabilities, operations, condition
(financial or otherwise) or prospects of (i) the Borrower or (ii) the Borrower
and its Subsidiaries taken as a whole or (b) the impairment of the ability of
Borrower or any of its Subsidiaries (other than ACE Funding) to perform any of
its respective obligations under this Agreement or any other Credit Document on
a timely basis or an impairment of the validity or enforceability of the rights
and benefits available to, or the Liens granted by the Borrower and its
Subsidiaries (other than ACE Funding) in favor of, the Administrative Agent, or
the Lenders (under the Credit Documents or otherwise). In determining whether
any individual event would result in a Material Adverse Effect, notwithstanding
that such event does not of itself have such effect, a Material Adverse Effect
shall be deemed to have occurred if the cumulative effect of such event and all
other then existing events would result in a Material Adverse Effect.
"Money Order Agreement" shall mean that certain money order agreement
between the Borrower and Travelers, dated April 16, 1998, as amended,
supplemented or restated from time to time in accordance herewith.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA.
"Net Income" shall mean, with respect to any Person for any period, the
aggregate income (or loss) of such Person for such period which shall be an
amount equal to (a) net revenues and other items of income for such Person less
(b) the aggregate for such Person of any and all items that are treated as
expenses under GAAP, less (c) Federal, state and local income taxes, all
computed and calculated in accordance with GAAP.
- 14 -
"Net Worth" shall mean, with respect to any Person at any date of
determination, the sum of (a) the total amount of capital stock, including
preferred stock, of such Person, plus (b) the paid-in-capital of such Person,
plus (c) the retained earnings of such Person, minus (d) the treasury stock of
such Person, all calculated in accordance with GAAP.
"Notes" shall mean, collectively, the Revolving Credit Notes and the
Seasonal Revolving Credit Notes of the Borrower, executed and delivered as
provided in Section 2.04 hereof.
"Obligations" shall mean all obligations, liabilities and indebtedness of
each of the Borrower and its Subsidiaries (other than ACE Funding) to the
Lenders or their Affiliates and the Administrative Agent arising under or in
connection with this Agreement or any other document or instrument executed in
connection herewith (including without limitation the other Credit Documents),
and all obligations, liabilities and indemnities of the Borrower and such
Subsidiaries under or in respect of any Hedging Contract entered into by
Borrower or any of such Subsidiaries with any Lender or any Affiliate of any
Lender, whether now existing or hereafter created, direct or indirect, matured
or unmatured, liquidated or unliquidated, primary or secondary, due or not,
including without limitation all of their respective obligations, liabilities
and indebtedness with respect to the principal of and interest on the Loans
(including but not limited to interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization, or like
proceeding relating to the Borrower or any of such Subsidiaries, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding), drawings under any Letter of Credit, and the payment or performance
of all other obligations, liabilities, and indebtedness owed by any of them to
the Lenders or their Affiliates and the Administrative Agent hereunder or under
any one or more documents or instruments executed and delivered in connection
herewith (including without limitation the other Credit Documents) or with any
Letter of Credit or Hedging Contract entered into by Borrower or any of such
Subsidiaries with any Lender or any Affiliate of any Lender, including without
limitation all fees, costs, expenses and indemnity obligations hereunder and
thereunder.
"Omnibus Confirmation Agreement" shall mean an Omnibus Confirmation
Agreement executed by the Borrower and certain of its Subsidiaries other than
ACE Funding, each substantially in the form of Exhibit E hereto.
"Other Financial Institutions" shall mean any financial institution other
than WFB.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Patent Security Agreement" shall mean that certain Patent Security
Agreement dated as of March 31, 2003 and executed by Borrower in favor of
Administrative Agent.
"Payday Loans" shall mean small, short-term, retail loans provided by the
Borrower and its Consolidated Subsidiaries (other than ACE Funding) which
consist of providing a consumer cash in exchange for the consumer's pay check
(endorsed to the order of the Borrower) or an ACH authorization to debit a
consumer's bank account, along with an agreement to defer the
- 15 -
presentment or deposit of such check, or the initiation of the applicable ACH
debit on such consumer's bank account, as the case may be, until the consumer's
next payday.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Pension Plan" shall mean any Plan which is subject to the provisions of
Title IV of ERISA (other than any Multiemployer Plan).
"Perfection Certificate" shall mean a Certificate signed by a Responsible
Officer of the Borrower which sets forth the perfection status of the Liens in
the Collateral, substantially in the form of Exhibit L.
"Permitted Liens" shall have the meaning given to such term in Section
6.01.
"Person" shall mean any natural Person, corporation, business trust,
association, company, joint venture, partnership or government or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Preferred Stock", as applied to the Equity Interests of any Person, shall
mean Equity Interests of any class or classes (however designated) that are
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over Equity Interests of any other class of such
Person.
"Pricing Grid" shall mean the pricing grid containing the Applicable
Margin to be added to the Adjusted LIBO Rate, in the case of Eurodollar Loans or
Reference Rate Loans, and Alternate Base Rate, in the case of ABR Loans, set
forth in Schedule 1 hereto.
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by WFB as its prime rate in effect at its principal office in
San Francisco; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Reference Rate" shall mean the Adjusted LIBO Rate applicable to an
Interest Period of one (1) month. The Reference Rate shall be reset on each
Business Day.
"Reference Rate Loan" shall mean any Revolving Credit Loan bearing
interest at an interest rate based upon the Reference Rate.
"Register" shall have the meaning assigned to such term in Section
9.04(b)(iv) hereof.
"Regulation D" shall mean Regulation D of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
- 16 -
"Regulation T" shall mean Regulation T of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Regulation U" shall mean Regulation U of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Related Parties" shall mean, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Remedial Work" shall have the meaning assigned to such term in Section
5.12(b) hereof.
"Reportable Event" shall mean a Reportable Event as defined in Section
4043(c) of ERISA.
"Required Lenders" shall mean at any time (a) two (2) or more Lenders
holding at least sixty six and two thirds percent (66 2/3%) of the then
aggregate unpaid principal amount of the Loans or (b) if no such principal
amount is then outstanding, two (2) or more Lenders having at least sixty six
and two thirds percent (66 2/3%) of the Total Commitment.
"Responsible Officer" shall mean, with respect to any Person other than
the Borrower, such Person's president, chairman, senior vice president, vice
president, chief financial officer or treasurer and shall mean with respect to
the Borrower, its chief executive officer, its president, its chief financial
officer, its senior vice president-finance and treasurer, its senior vice
president-operations, and its controller.
"Restated EBITDA" shall mean, with respect to any Person, such Person's
actual EBITDA restated to substitute, in lieu of actual expenses deducted in
determining such actual EBITDA, expenses that are, in the judgment of
Administrative Agent and Borrower, contractually controllable by Borrower (e.g.,
officer or employee compensation, bank and/or depository fees, courier fees and
other similar expense items).
"Revolving Credit Commitment" shall mean, with respect to any Lender, the
Revolving Credit Commitment of such Lender as set forth in Schedule 2.01(a)
annexed hereto, as the same may be terminated or reduced from time to time in
accordance with the provisions of this Agreement.
"Revolving Credit Loan" shall mean advances under the Revolving Credit
Commitment to the Borrower made pursuant to this Agreement.
"Revolving Credit Notes" shall mean the Revolving Credit Notes of the
Borrower, executed and delivered as provided in Section 2.04 hereof, in
substantially the form of Exhibit A annexed hereto, as amended, modified,
supplemented or extended from time to time.
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"Revolving Credit Termination Date" shall mean the earlier of (a) Final
Maturity Date or (b) such date as the Revolving Credit Loans shall otherwise be
payable in full and the Revolving Credit Commitment shall terminate, expire or
be canceled in accordance with the terms of this Agreement.
"Seasonal Revolving Credit Availability Period" shall mean any of the
following periods: (a) December 15, 2004 until and including ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇)
December 15, 2005 until and including March 15, 2006, (c) December 15, 2006
until and including March 15, 2007, and (d) December 15, 2007 until and
including March 15, 2008.
"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(b) 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 that 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 Notes" shall mean the Seasonal Revolving Credit
Notes of the Borrower, executed and delivered as provided in Section 2.04
hereof, in substantially the form of Exhibit B annexed hereto, as amended,
modified, supplemented or extended from time to time.
"Seasonal Revolving Credit Termination Date" shall mean the earlier of (a)
March 15, 2008 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.
"Security Agreement" shall mean individually and collectively the
Assignments of Deposit Accounts and Security Agreements by the Borrower and
certain of its Subsidiaries other than ACE Funding dated as of March 31, 2003,
as from time to time amended, supplemented, restated or otherwise modified,
securing the Obligations and the other therein described obligations of the
Borrower and its Subsidiaries other than ACE Funding.
"Security Documents" shall mean individually and collectively, the
Security Agreement, the Stock Pledge Agreements, the Guaranty Agreement, all
other assignments, deeds, pledges, financing statements and other documents
executed or delivered to any Lender in connection with granting of a Lien in the
Collateral in favor of Administrative Agent, and all amendments, modifications,
supplements, renewals, extensions, increases, rearrangements of, and
substitutions for the foregoing.
"Senior Subordinated Indebtedness" shall mean any Indebtedness of the
Borrower which is subordinated to the Obligations at all times pursuant to terms
reasonably satisfactory to the Required Lenders and the Administrative Agent.
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"Statutory Reserve Rate" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans and Reference Rate Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Stock Pledge Agreements" means the Stock Pledge Agreements, dated as of
March 31, 2003 and executed by the Borrower and certain of its Subsidiaries
other than ACE Funding.
"Subsidiary" shall mean, with respect to any Person, any corporation,
association or other business entity in which said Person or one or more
Subsidiaries of said Person owns or controls, directly or indirectly, securities
or other ownership interests representing more than fifty percent (50%) of the
ordinary voting power. As used in this Agreement with respect to the Borrower,
the term "Subsidiary" shall include all direct and indirect Subsidiaries of the
Borrower.
"Subsidiary's Cash Holdings" shall mean, with respect to a Subsidiary of
the Borrower, other than ACE Funding, such Subsidiary's cash in such
Subsidiary's stores, plus such Subsidiary's cash in such Subsidiary's depository
accounts with the Administrative Agent, plus such Subsidiary's cash in such
Subsidiary's depository accounts with Other Financial Institutions, plus the
amount of items of such Subsidiary in clearing at the Administrative Agent and
at Other Financial Institutions, plus cash of such Subsidiary in transit with
armored couriers.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges, or withholdings imposed by any Governmental
Authority.
"Third-Party Payables" shall mean all contractual obligations owing to
third parties in respect of cash and checks received by the Borrower or a
Guarantor for the purchase of lottery tickets, the payment of any type of ▇▇▇▇
on behalf of a customer, or the payment for any service rendered by the Borrower
or any Guarantor on behalf of a third party for which funds are to be remitted
to a third party, and all sums (to the extent the same are not subject to the
Intercreditor Agreement) which are owed to Travelers under the Money Order
Agreement.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next
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preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 9:00 a.m., Dallas, Texas time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Total Commitment" shall mean the sum of the Lenders' Total Revolving
Credit Commitments and Total Seasonal Revolving Credit Commitments, as the same
may be terminated or reduced from time to time in accordance with the provisions
of this Agreement.
"Total Revolving Credit Commitment" shall mean the sum of the Lenders'
Revolving Credit Commitments, as the same may be terminated or reduced from time
to time in accordance with the provisions 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.
"Trademark Security Agreement" shall mean that certain Patent Security
Agreement dated as of March 31, 2003 and executed by Borrower and certain of the
Subsidiaries in favor of Administrative Agent.
"Travelers" shall mean Travelers Express Company, Inc.
"Travelers Documents" shall mean the Travelers Primary Agreements and all
agreements, certificates and instruments executed and/or delivered in connection
therewith.
"Travelers Event of Default" shall mean the occurrence of an event or
condition (after giving effect to any applicable notice and cure provisions)
that permits Travelers to terminate the Money Order Agreement under Section 18.b
thereof because of default by Borrower thereunder.
"Travelers Primary Agreements" shall mean the Money Order Agreement, and
that certain Money Transfer Agreement dated June 30, 2000, by and between the
Borrower and Travelers, as amended, supplemented, restated or otherwise modified
through and including the Closing Date.
"Type" shall refer to whether a Loan is an ABR Loan, Reference Rate Loan,
or Eurodollar Loan, each of which constitutes a Type of Loan.
"Unrestricted Indebtedness" shall mean Indebtedness (i) as to which
neither the Borrower nor any of its Subsidiaries other than ACE Funding is
directly or primarily liable (by virtue of the Borrower or one of its other
Subsidiaries being the primary obligor on, guarantor of, or otherwise liable
with respect to, such Indebtedness), and (ii) which, upon the occurrence of a
default with respect thereto, does not result in, or permit any holder of any
Indebtedness of the Borrower or any of its Subsidiaries (other than ACE Funding)
to declare a default on such Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
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"Usage Period" shall mean the period from January 2 (or the next Business
Day if January 2 is not a Business Day) through April 30 (or the next Business
Day if April 30 is not a Business Day) of each calendar year.
"WFB" shall have the meaning assigned to such term in the preamble to this
Agreement.
SECTION 1.02. Accounting Terms; Financial Covenants. Unless otherwise
expressly provided herein, each accounting term used herein shall have the
meaning given it under generally accepted accounting principles in effect from
time to time in the United States applied on a basis consistent with those used
in preparing the financial statements referred to in Section 5.05 hereof
("GAAP"). If subsequent to the date hereof, the accounting principles under GAAP
are changed and as a result of such change the calculation of any financial
covenant set forth herein is affected, the Lenders and the Borrower hereby agree
to amend such financial covenants in such a manner as to make such financial
covenants consistent with the financial covenants in effect hereunder prior to
such change in accounting principles and, until such amendment is effected, such
financial covenants shall be calculated from financial statements of the
Borrower adjusted to reflect the accounting principles followed by the Borrower
prior to such change in accounting principles. Notwithstanding anything to the
contrary contained in Sections 6.07, 6.08, 6.09, and 6.10, the financial
covenants contained in such sections shall be calculated in each case on a
Consolidated basis with respect to the Borrower and its Subsidiaries but
excluding the financial results of ACE Funding; provided, however, that such
calculations shall include (a) dividends or other distributions paid by ACE
Funding to the Borrower in respect of Equity Interests issued by ACE Funding and
owned by the Borrower, (b) all payments made by ACE Funding to the Borrower on
loans or other advances made to ACE Funding by the Borrower, and (c) for balance
sheet purposes, amounts invested in or loaned to ACE Funding by Borrower.
SECTION 1.03. Miscellaneous. The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Article, Section, Schedule and Exhibit references are to Articles and Sections
of and Schedules and Exhibits to this Agreement, unless otherwise specified.
ARTICLE II. THE LOANS
SECTION 2.01. The Total Commitments.
(a) The Existing Lenders made Revolving Credit Loans (as defined
in the Existing Credit Agreement) to Borrower under the Existing Credit
Agreement and, as of the Closing Date, $40,200,000 aggregate principal amount of
such Revolving Credit Loans are outstanding. The Existing Lenders made Seasonal
Revolving Credit Loans (as defined in the Existing Credit Agreement) to Borrower
under the Existing Credit Agreement and, as of the Closing Date, $0.00 aggregate
principal amount of such Seasonal Revolving Credit Loans are outstanding. There
are two letters of credit outstanding under and subject to the Existing Credit
Agreement. From the respective dates of such Revolving Credit Loans and issuance
of such letters of credit to the Closing Date, the Existing Lenders shall
participate therein and be entitled to all interest, fees and other amounts
payable in respect thereof as provided in the Existing Credit Agreement.
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Upon the effectiveness of the amendment and restatement of the Existing Credit
Agreement effected hereby, the Lenders shall be deemed to have purchased and
assumed all of the rights, titles, interests and obligations under the Existing
Credit Agreement from the Existing Lenders thereunder in respect of, and all
commitments relating to, the foregoing described Revolving Credit Loans and
Seasonal Revolving Credit Loans. From and after the Closing Date, each Lender
shall have an undivided interest and participation in the foregoing described
letters of credit in accordance with Section 2.14 hereof. On the Closing Date,
all Interest Periods under and as defined in the Existing Credit Agreement in
respect of any Eurodollar Loans under and as defined in the Existing Credit
Agreement shall automatically be terminated (and the Borrower shall on the
Closing Date make payments to the Existing Lenders that held such Eurodollar
Loans under Section 2.09 and Section 2.12 of the Existing Credit Agreement to
compensate for such termination as if such termination were a payment or
prepayment referred to in said Sections 2.09 and 2.12), and subject to the other
restrictions contained herein, the Borrower shall be permitted to continue such
Eurodollar Loans or to convert such Eurodollar Loans into Reference Rate Loans
or ABR Loans hereunder.
(b) The Administrative Agent shall notify each Lender of the
amount of Loans required to be made by such Lender (if any) to the Borrower on
the Closing Date, such that after giving effect to the transactions contemplated
to occur on the Closing Date, each Lender's Revolving Credit Commitment and
Seasonal Revolving Credit Commitment shall be in accordance with the Revolving
Credit Commitment and Seasonal Revolving Credit Commitment set forth opposite
its name on Schedule 2.01(a) and Schedule 2.01(b). Each Lender's Loans to the
Borrower shall not exceed its pro rata portion of all Loans then outstanding to
the Borrower, and the unused Total Commitments of all Lenders plus all
outstanding Revolving Credit Loans and Seasonal Revolving Credit Loans, in each
case under and as defined in the Existing Credit Agreement, as amended hereby,
shall not exceed the Total Commitment. Each Lender hereby agrees to give effect
to the instructions of the Administrative Agent to such Lender contained in the
notice described above.
(c) 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(a) hereto. Notwithstanding the foregoing, the Borrower hereby agrees that
the Borrower shall not permit on any date the sum of (i) the aggregate principal
amount of all Loans outstanding plus (ii) the aggregate amount of the LC
Exposure, to exceed the amount of the Borrowing Base on such date.
(d) 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 during each Seasonal
Revolving Credit Availability Period, the Borrower having the right to borrow,
repay and reborrow, from the Closing Date to the Seasonal Revolving Credit
Termination Date, in an 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
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Schedule 2.01(b) hereto. The Seasonal Revolving Credit Loans shall be subject to
the Borrowing Base and shall not be requested by the Borrower if any such
Seasonal Revolving Credit Loan would cause the aggregate principal amount of the
Seasonal Revolving Credit Loans, plus the aggregate principal amount all
Revolving Credit Loans, plus the amount of the LC Exposure to exceed the amount
of the Borrowing Base on such date. 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 Agreement.
SECTION 2.02. Loans.
(a) Each ABR Loan and each Reference Rate Loan made by the Lenders on
any date shall not be less than one million dollars ($1,000,000) and in integral
multiples of one hundred thousand dollars ($100,000). Each Eurodollar Loan made
by the Lenders on any date shall not be less than three million dollars
($3,000,000) and in integral multiples of five hundred thousand dollars
($500,000).
(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.
(c) Each Loan shall be either an ABR Loan, Reference Rate Loan or a
Eurodollar Loan as the Borrower may request in accordance with the provisions of
this Agreement. Each Lender may fulfill its obligations under this Agreement by
causing its Applicable Lending Office to make such Loan. Not more than seven (7)
Eurodollar Loans may be outstanding at any one time.
(d) The Borrower shall have the right at any time upon prior irrevocable
written or facsimile notice (promptly confirmed in writing) to the
Administrative Agent given in the manner and at the times specified in Section
2.03 hereof with respect to the Loans into which conversion or continuation is
to be made, to convert all or any portion of Revolving Credit Loans that are
Eurodollar Loans or Reference Rate Loans into ABR Loans, to convert all or any
portion of ABR Loans or Reference Rate Loans into Eurodollar Loans (specifying
the Interest Period to be applicable thereto), to convert the Interest Period
with respect to all or any portion of any Eurodollar Loans to another
permissible Interest Period, and to continue all or any portion of any Loans
into a subsequent Interest Period of the same duration, subject to (x) the terms
and conditions of this Agreement (including with respect to the conversion of
ABR Loans into Eurodollar Loans or Reference Rate Loans, the last sentence of
Section 2.02(c) hereof) and (y) the following:
(i) in the case of a conversion or continuation of fewer
than all the Loans made to the Borrower, the aggregate principal amount of
Loans converted or continued shall be an integral multiple of one million
dollars ($1,000,000);
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(ii) accrued interest on a Loan (or portion thereof) being
converted or continued shall be paid by the Borrower at the time of
conversion or continuation (but only with respect to the portion thereof
being so converted or continued);
(iii) if any Eurodollar Loan is converted at any time other
than the end of an Interest Period applicable thereto, the Borrower shall
make such payments associated therewith as are required pursuant to
Section 2.11 hereof,
(iv) the representations and warranties set forth in Article
III hereof and in any documents delivered in connection herewith shall be
true and correct in all material respects with the same effect as though
made on and as of such date (except insofar as such representations and
warranties relate expressly to an earlier date); and
(v) no Default or Event of Default shall have occurred and
be continuing.
The Interest Period applicable to any Eurodollar Loan resulting from a
conversion shall be specified by the Borrower in the irrevocable notice of
conversion delivered pursuant to this Section 2.02; provided, however, that if
no such Interest Period shall be specified, the Borrower shall be deemed to have
selected an Interest Period of one (1) month's duration. If the Borrower shall
not have given timely notice to continue any Eurodollar Loan into a subsequent
Interest Period (and shall not otherwise have given notice to convert such
Loan), such Loan (unless repaid or required to be repaid pursuant to the terms
hereof) shall automatically be converted into a Reference Rate Loan. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.02 and of each Lender's portion of the continuation
or conversion hereunder.
SECTION 2.03. Notice of Revolving Credit Loans and Seasonal Revolving
Credit Loans; Funding of Loans.
(a) The Borrower shall give the Administrative 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(d) hereof) not later than (i) 10:00 a.m., Dallas, Texas time, the
third Business Day before a proposed Revolving Credit Loan consisting of a
Eurodollar Loan borrowing or any Eurodollar Loan conversion and (ii) 10:00 a.m.,
Dallas, Texas time, the Business Day of a proposed Revolving Credit Loan or
Seasonal Revolving Credit Loan consisting of an ABR Loan borrowing or Reference
Rate Loan Borrowing or any ABR Loan conversion or Reference Rate Loan
conversion; provided, that any such notice of a proposed ABR Loan borrowing to
finance reimbursement of an LC Disbursement as contemplated by Section 2.14(e)
may not be given later than 10:00 a.m. Dallas, Texas time on the date of the
proposed borrowing. Such notice shall be in substantially the form of Exhibit D
hereto (the "Borrowing Notice") and shall (i) state whether the Loans then being
requested are to be Revolving Credit Loans or Seasonal Revolving Credit Loans,
(ii) in the case of Revolving Credit Loans, specify whether the Revolving Credit
Loans then being requested are to be ABR Loans, Reference Rate Loans, or
Eurodollar Loans (specifying the Interest Period to be applicable thereto),
(iii) specify the date of such borrowing (which shall be a Business Day) and
amount thereof, (iv) state that the representations and warranties set forth in
Article III hereof and in any documents delivered in connection herewith shall
be true and correct in all
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material respects with the same effect as though made on and as of such date
(except insofar as such representations and warranties relate expressly to an
earlier date), (v) state that no Default or Event of Default has occurred and is
continuing or would otherwise be created by such borrowing and (vi) state that
the proceeds of such Loans will be used only to fund Borrower's working capital
requirements in the ordinary course of its business. If no election as to the
Type of Loan is specified in any such notice, all such Loans shall be ABR Loans.
Notwithstanding anything contained in this Agreement to the contrary, (i)
Revolving Credit Loans shall only be, and shall only be convertible into, ABR
Loans, Reference Rate Loans, or Eurodollar Loans and (ii) Seasonal Revolving
Credit Loans shall only be, and shall only be convertible into, ABR Loans. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.03 and of each Lender's portion of the requested
borrowing.
(b) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 11:00
a.m., Dallas, Texas time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent and designated by the Borrower in the
applicable Borrowing Notice; provided that ABR Loans made to finance the
reimbursement of an LC Disbursement as provided herein shall be remitted by the
Administrative Agent to the Issuing Bank.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Loan that such Lender will not make
available to the Administrative Agent such Lender's share of such Loan, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (b) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Loan available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in the
applicable Borrowing Notice.
SECTION 2.04. Notes; Repayment of Loans.
(a) Revolving Credit Loans made by a Lender to the Borrower may be
evidenced by a single Revolving Credit Note, duly executed by the Borrower,
dated as of the Closing Date, 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 Revolving Credit Commitment on such date and Seasonal Revolving
Credit Loans made by a Lender to the Borrower may be evidenced by a single
Seasonal Revolving Credit Note, duly executed by the Borrower, dated as of the
Closing Date, in substantially the form of Exhibit B hereto, delivered by the
Borrower and payable to
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such Lender in a principal amount equal to the highest principal amount at any
time outstanding of such Lender's Seasonal Revolving Credit Commitment;
provided, however, that no Lender shall receive a Revolving Credit Note or
Seasonal Revolving Credit Note without first requesting Borrower to deliver the
same to such Lender. Upon receipt of such request, Borrower shall promptly
execute and deliver such Revolving Credit Note or Seasonal Revolving Credit Note
to such Lender.
(b) Each Revolving Credit Loan 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 and all accrued and unpaid
interest thereon shall mature and be due and payable in full on the Revolving
Credit Termination Date. Each Seasonal Revolving Credit Loan 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 and all accrued and unpaid interest thereon shall mature and be due and
payable in full on the earlier to occur of (i) Seasonal Revolving Credit
Termination Date or (ii) the last day of the Seasonal Revolving Credit
Availability Period during which each such Seasonal Revolving Credit Loan was
made.
(c) Each Lender, or the Administrative Agent on its behalf, shall, and
is hereby authorized by the Borrower to, endorse on the schedule attached to any
Note of such Lender (or on a continuation of such schedule attached to such Note
and made a part thereof) an appropriate notation evidencing, for all Notes, the
date and amount of each Loan to the Borrower from such Lender and the date and
amount of each payment and prepayment with respect thereto; provided, however,
that the failure of any Person to make such a notation on a Note shall not
affect any obligations of the Borrower under such Note. Any such notation shall
be conclusive and binding as to the date and amount of such Loan or portion
thereof, or payment or prepayment of principal or interest thereon, absent
manifest error.
SECTION 2.05. Interest on Loans.
(a) Subject to the provisions of Section 2.08 and Section 9.13 hereof,
each ABR Loan shall bear interest at a rate per annum equal to the Alternate
Base Rate plus the Applicable Margin then in effect.
(b) Subject to the provisions of Section 2.08 and Section 9.13 hereof,
each Eurodollar Loan shall bear interest at a rate per annum equal to the
Adjusted LIBO Rate plus the Applicable Margin then in effect.
(c) Subject to the provisions of Section 2.08 and Section 9.13 hereof,
each Reference Rate Loan shall bear interest at a rate per annum equal to the
Reference Rate plus the Applicable Margin then in effect.
(d) Accrued interest on each Revolving Credit Loan shall be payable in
arrears on each Interest Payment Date for such Revolving Credit Loan and on the
Revolving Credit Termination Date. Accrued interest on each Seasonal Revolving
Credit Loan shall be payable in arrears on each Interest Payment Date for such
Seasonal Revolving Credit Loan and on the Seasonal Revolving Credit Termination
Date. Notwithstanding the foregoing (i) interest accrued
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pursuant to Section 2.08(a) shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than a prepayment of an ABR Loan
prior to the Revolving Credit Termination Date or Seasonal Revolving Credit
Termination Date, as applicable), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurodollar Loan prior to the end
of the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.
(e) All interest on the Loans hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate, Reference Rate, Adjusted LIBO Rate or LIBO Rate shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.06. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a fee (the "Commitment Fee"), which shall accrue at the
Applicable Commitment Fee Rate on the daily amount of the unused Total
Commitment (which with respect to the Seasonal Revolving Credit Commitment shall
only be calculated during the Seasonal Revolving Credit Availability Period) of
such Lender during the period from and including the Closing Date to but
excluding the date on which such Total Commitment or any portion thereof
terminates. Accrued Commitment Fees shall be payable in arrears on the last day
of March, June, September and December of each year and on the Revolving Credit
Termination Date or Seasonal Revolving Credit Termination Date, commencing on
the first such date to occur after the date hereof; provided that any Commitment
Fees accruing after the Revolving Credit Termination Date or Seasonal Revolving
Credit Termination Date, as applicable, shall be payable on demand. The
Commitment Fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Borrower agrees to pay to each of the Administrative Agent, for
its own account, and the Lenders fees payable in the amounts and at the times
separately agreed upon between the Borrower and the Administrative Agent and/or
Lenders.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to Issuing Lender,
in the case of fees payable to it in respect of Letters of Credit) for
distribution, in the case of Commitment Fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.07. Termination or Reduction of the Total Revolving Credit
Commitment; Termination of Seasonal Revolving Credit Commitment.
(a) Upon at least five (5) Business Days' prior irrevocable written
notice (or facsimile notice promptly confirmed in writing) to the Administrative
Agent, the Borrower may at any time in whole permanently terminate, or from time
to time in part permanently reduce, the Total
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Revolving Credit Commitment ratably among the Lenders in accordance with the
amounts of their Commitments; provided, however, the Total Revolving Credit
Commitment shall not at any time be reduced to an amount less than the sum of
the Revolving Credit Loans then outstanding. Each voluntary partial reduction of
the Total Revolving Credit Commitment shall be in an integral multiple of five
million dollars ($5,000,000).
(b) Simultaneously with any termination or reduction of the Total
Revolving Credit Commitment pursuant to paragraph (a) above, the Borrower shall
pay to each Lender, through the Administrative Agent, the Commitment Fee due and
owing through and including the date of such termination or reduction on the
amount of the Commitment of such Lender so terminated or reduced.
(c) The Revolving Credit Commitment of each Lender shall automatically
and permanently terminate on the Revolving Credit Termination Date, and all
Revolving Credit Loans still outstanding on such date shall be due and payable
in full together with accrued interest thereon. No Lender shall have any
obligation to make any Revolving Credit Loans after the Revolving Credit
Termination Date.
(d) 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. No Lender shall have any obligation to make any Seasonal Revolving
Credit Loans (i) at any time other than during a Seasonal Revolving Credit
Availability Period or (ii) after the Seasonal Revolving Credit Termination
Date.
SECTION 2.08. Interest after Default; Alternate Rate of Interest.
(a) Notwithstanding anything to the contrary contained herein, from and
after the occurrence and during the continuance of any Default or Event of
Default, amounts outstanding hereunder shall bear interest at a rate per annum
equal to (i) in the case of overdue principal of any Loan, 3.00% plus the
aggregate rate of interest otherwise applicable to such Loan as provided herein
or (ii) in the case of any other amount outstanding hereunder (whether for
interest, fees, indemnities, or otherwise), 3.00% plus the aggregate rate of
interest applicable to ABR Loans as provided herein, but in no event at a rate
of interest higher than the maximum rate of interest permitted under applicable
law.
(b) If prior to the commencement of any Interest Period in respect of a
Eurodollar Loan or Reference Rate Loan:
(i) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or
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maintaining their Eurodollar Loans or Reference Rate Loans (or its
Eurodollar Loan or Reference Rate Loan) for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower
and the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (x) any interest
rate request that requests the conversion of any Revolving Credit Loan to, or
continuation of any Revolving Credit Loan as, a Eurodollar Loan or Reference
Rate Loan shall be ineffective and (y) if any Borrowing Notice requests a
Eurodollar Loan or Reference Rate Loan, such Loan shall be made as an ABR Loan.
SECTION 2.09. Prepayment of Loans.
(a) Subject to the terms and conditions contained in this Section 2.09
and elsewhere in this Agreement, the Borrower shall have the right to prepay any
Loan at any time in whole or from time to time in part (except in the case of a
Eurodollar Loan only on the last day of an Interest Period) without penalty
(except as otherwise provided for herein); provided, however, that each such
partial prepayment of a Loan shall not be less than two million dollars
($2,000,000) and in integral multiples of five hundred thousand dollars
($500,000), or if the outstanding principal balance is less than two million
dollars ($2,000,000), such prepayment shall be in whole.
(b) On the date of any termination or reduction of the Total Revolving
Credit Commitment pursuant to Section 2.07 hereof, the Borrower shall pay or
prepay so much of the aggregate amount of all Loans outstanding as shall be
necessary in order that (i) the sum of the aggregate principal amount of all
Loans then outstanding plus the amount of the LC Exposure then outstanding will
not exceed the Total Revolving Credit Commitment on such date, and (ii) the sum
of the aggregate principal amount of all Loans then outstanding plus the amount
of the LC Exposure then outstanding will not exceed the Borrowing Base on such
date.
(c) If on any date the sum of (i) the aggregate principal amount of all
Loans outstanding plus (ii) the amount of the LC Exposure exceeds the amount of
the Borrowing Base on such date (a "Borrowing Base Deficiency"), the Borrower
shall immediately prepay the principal of the Loans in an amount equal to or
greater than such Borrowing Base Deficiency. Such mandatory payment shall be
accompanied by all accrued and unpaid interest on the amount prepaid.
(d) Each prepayment of the Revolving Credit Loans or Seasonal Revolving
Credit Loans shall be applied ratably to the Loans then being repaid and then as
cash collateral for outstanding Letters of Credit up to the full amount of the
LC Exposure then existing, such cash collateral to be held by the Administrative
Agent for the benefit of the Issuing Bank in a special cash collateral account.
(e) Subject to the terms and conditions contained in this Section 2.09
and elsewhere in this Agreement, when making a prepayment, the Borrower shall
furnish to the Administrative Agent, not later than 10:00 a.m., Dallas, Texas
time, (i) on the Business Day prior to such prepayment of ABR Loans and (ii)
three (3) Business Days prior to the date of such prepayment
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of Eurodollar Loans, written or facsimile notice (promptly confirmed in writing)
or, in the case of an ABR Loan telephonic notice (promptly confirmed in writing)
of prepayment which shall specify the prepayment date and the principal amount
of each Loan (or portion thereof) to be prepaid, which notice shall be
irrevocable and shall commit the Borrower to prepay such Loan by the amount
stated therein on the date stated therein. All prepayments of Eurodollar Loans
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of prepayment. After prior written notice to the Borrower (which may
be by facsimile communication), the Administrative Agent may charge, when due
and payable, the Borrower's account with the Administrative Agent for all
interest, principal and Commitment Fees and other fees owing to the
Administrative Agent or the Lenders on or with respect to this Agreement or the
Loans.
(f) Prepayments with respect to any paragraph of this Section 2.09 are
in addition to prepayments made or required to be made under any other paragraph
of this Section 2.09.
SECTION 2.10. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan (or of
maintaining its obligation to make any such Eurodollar Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any
sum received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or otherwise), then the Borrower will pay
to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank, as
the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower
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will pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.11. Break Funding Payments.
In the event of (a) the payment of any principal of any Eurodollar Loan
other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, or (c) the
failure to borrow, convert, continue or prepay any Eurodollar Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked hereunder and is revoked in accordance herewith), then, in
any such event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined by
such Lender to be the excess, if any, of (i) the amount of interest which would
have accrued on the principal amount of such Loan had such event not occurred,
at the Adjusted LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period for such Loan), over
(ii) the amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.12. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any
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Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or 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, Lender or Issuing Bank (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
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 the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower 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) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
(f) If the Administrative Agent or a 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 the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.12, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.12 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid
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over to the Borrower (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 Section 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 which it deems confidential) to
the Borrower or any other Person.
SECTION 2.13. Payments Generally; Pro Rata Treatment, Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of obligations
in respect of Letters of Credit, or otherwise) prior to noon, Dallas, Texas
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices in San
Francisco, except payments to be made directly to the Issuing Bank or any Lender
as expressly provided herein. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest, fees, and other amounts then due hereunder, such funds
shall be applied (i) first, to any reimbursements due to Administrative Agent
under Article VIII hereof, (ii) second, towards payment of interest and fees
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (iii) third,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Subject to Section 9.08, if any Lender shall, by exercising any
right of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or participations in LC
Disbursements resulting in such Lender receiving payment of a greater proportion
of the aggregate amount of its Loans and participations in LC Disbursements and
accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans and participations in LC Disbursements of
other Lenders to the extent necessary 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
participations in LC Disbursements; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the
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Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in LC
Disbursements to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower 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 the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made by
it hereunder, then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.14. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, the
Borrower may request the issuance of Letters of Credit for its own account, in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time from the Closing Date until the Revolving Credit
Termination Date. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto and from
and after the Closing Date shall be subject to and governed by the terms and
conditions hereof.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested
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date of issuance, amendment, renewal or extension) a Borrowing Notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing Bank,
the Borrower also shall submit a letter of credit application on the Issuing
Bank's standard form in connection with any request for a Letter of Credit. The
Borrower hereby agrees that it shall not request a Letter of Credit to be
issued, amended, renewed or extended unless (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the amount of the LC Exposure does not exceed
$10,000,000 and (ii) the sum of the aggregate principal amount of all
outstanding Loans plus the amount of the LC Exposure does not exceed the amount
of the Borrowing Base on such date.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Final Maturity Date; provided, however,
that a Letter of Credit may have a later date of expiration date in the
reasonable discretion of the Issuing Bank and the Administrative Agent if the
Borrower deposits cash collateral with either the Issuing Bank or the
Administrative Agent upon issuance thereof in an amount equal to 100% of the
face amount of such Letter of Credit (which cash collateral shall be subject to
the provisions of Section 2.14(j) hereof) and the Borrower complies with such
other conditions and requirements to the issuance thereof as may be required by
Administrative Agent and/or Issuing Bank (in addition all other conditions and
requirements contained in this Section 2.14).
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
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(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
with interest from the date of such LC Disbursement as set forth in Section
2.14(h) by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 11:00 a.m., Dallas, Texas time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 9:00 a.m., Dallas, Texas time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 11:00 a.m., Dallas, Texas time, on the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that
the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance herewith that such payment be financed with an ABR Loan
under the Total Revolving Credit Commitment in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Loan. If the Borrower fails to make
such payment when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Applicable Percentage thereof. Promptly following
receipt of such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the same
manner as provided in Section 2.03(b) with respect to Loans made by such Lender
(and Section 2.03(b) shall apply, mutatis mutandis, to the payment obligations
of the Lenders), and the Administrative Agent shall promptly pay to the Issuing
Bank the amounts so received by it from the Lenders. Promptly following receipt
by the Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing
Bank as their interests may appear. Any payment made by a Lender pursuant to
this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than
the funding of ABR Loans as contemplated above) shall not constitute a Loan and
shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
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technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.08(a) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among the Borrower, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of the Issuing Bank. At the
time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(k). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto
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and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 10% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (e) or (f) of Article VII. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 10% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
(k) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for the account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at the
same Applicable Margin used to determine the interest rate applicable to
Eurodollar Loans on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Closing Date to but excluding the later
of the date on which such Lender's Revolving Credit Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per annum
on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Total Commitments and the date on which there ceases to be
any LC Exposure, as well as the Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on
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the third Business Day following such last day, commencing on the first such
date to occur after the Effective Date; provided that all such fees shall be
payable on the date on which the Total Commitments terminate and any such fees
accruing after the date on which the Total Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders that:
SECTION 3.01. Organization; Legal Existence. The Borrower and each of its
Subsidiaries is a corporation or other juridical person, validly existing and in
good standing under the laws of the jurisdiction of its organization or
formation, as applicable, has the requisite corporate or other juridical power
and authority to own its property and assets and to carry on its business as now
conducted and is qualified to do business in every jurisdiction where such
qualification is required (all such jurisdictions being listed in Schedule 3.14
hereto), except for those jurisdictions in which the failure to qualify would
not have a Material Adverse Effect. The Borrower has the corporate power to
execute, deliver and perform its obligations under this Agreement and the other
Credit Documents and to borrow hereunder and to execute and deliver the Notes.
SECTION 3.02. Authorization. The Credit Transactions (a) have been duly
authorized by all requisite corporate action, and (b) will not (i) violate (A)
the certificate or articles of incorporation or other applicable constitutive
documents or the bylaws of the Borrower or any of its Subsidiaries party to the
same, or to the Borrower's knowledge, any provision of law, statute, rule or
regulation applicable to the Borrower and such Subsidiaries, (B) any order of
any court, or any rule, regulation or order of any other agency of government
addressed to and binding upon the Borrower or any of its Subsidiaries, or (C)
any provisions of any material indenture, agreement or other instrument to which
the Borrower or any of such Subsidiaries or any of their respective properties
or assets are or may be bound, (ii) be in conflict with, result in a breach of
or constitute (alone or with notice or lapse of time or both) a default under
any material indenture, agreement or other instrument referred to in clause
(i)(C) above or (iii) result in the creation or imposition of any Lien of any
nature whatsoever upon any property or assets of the Borrower or any of its
Subsidiaries, other than the Liens created in favor of the Administrative Agent,
and the Lenders.
SECTION 3.03. Governmental Approvals. No registration or filing with,
consent or approval of, or other action by any federal, state or other
governmental agency, authority or regulatory body is or will be required by the
Borrower or any Guarantor as a condition to the Credit Transactions.
SECTION 3.04. Binding Effect. This Agreement constitutes a legal, valid
and binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, and each of the other Credit Documents to which it or
a Subsidiary is a party, when duly executed
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and delivered, will constitute a legal, valid and binding obligation of the
Borrower or such Subsidiary, as applicable.
SECTION 3.05. Material Adverse Effect; Default. Since June 30, 2003, no
event has occurred which has had, or could reasonably be expected to have, a
Material Adverse Effect. No event has occurred and is continuing which
constitutes a Default.
SECTION 3.06. Litigation; Compliance With Laws; Etc.
(a) There are not any actions, suits or proceedings at law or in equity
or by or before any governmental instrumentality or other agency or regulatory
authority now pending or to Borrower's knowledge threatened against or affecting
the Borrower or any of its Subsidiaries or the businesses, assets or rights of
the Borrower or any of its Subsidiaries (i) which, if adversely determined,
could reasonably be expected to materially impair the ability of the Borrower
and its Subsidiaries taken as a whole to conduct business substantially as now
conducted, or otherwise could reasonably be expected to have a Material Adverse
Effect, except as disclosed on Schedule 3.06, (ii) as to which it is probable
(within the meaning of Statement of Financial Accounting Standards No. 5) that
there will be an adverse determination that could reasonably be expected to have
a Material Adverse Effect, or (iii) which involve any of the Credit
Transactions.
(b) To the Borrower's knowledge, neither the Borrower nor any of its
Subsidiaries is in violation of any law, statute, rule or regulation applicable
to any of them, or in default with respect to any judgment, writ, injunction,
decree, rule or regulation of any court or governmental agency or
instrumentality addressed to and binding on it, the violation of or default with
respect to which could reasonably be expected to have a Material Adverse Effect.
(c) Except as set forth in Schedule 3.06, there is no remedial or other
corrective action that any of the Borrower or any of its Subsidiaries (other
than ACE Funding) is required to take to remain in compliance with any judgment,
order, writ, injunction or decree of any Governmental Authority or to maintain
any material permits, approvals or licenses granted by any Governmental
Authority in full force and effect. During the past 5 years, none of the
officers or directors of the Borrower or its Subsidiaries (other than ACE
Funding) have been convicted of any felony involving moral turpitude. During the
past 2 years, none of the officers or directors of the Borrower or its
Subsidiaries (other than ACE Funding) have been bankrupt nor an executive
officer of a bankrupt company.
SECTION 3.07. Financial Statements. The Borrower has heretofore furnished
to the Administrative Agent (i) an audited Consolidated balance sheet and
statement of income of the Borrower as of and for the Fiscal Year ended June 30,
2003, (ii) unaudited Consolidated balance sheets of the Borrower as of March 31,
2004, and the related statement of income for the respective three-month periods
then ended (which may be delivered on the Closing Date), prepared by management
of the Borrower and in form acceptable to Administrative Agent, and (iii)
Consolidated financial projections for the Borrower and its Subsidiaries for its
2004, 2005, 2006, 2007 and 2008 Fiscal Years on an annual basis, prepared by
management of the Borrower. The balance sheets and statements of income
described in (i) and (ii) present fairly in all material respects the
Consolidated financial condition and results of operations of the Borrower and
its Subsidiaries, as of the dates and for the periods indicated, and such
balance sheets and the notes
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thereto (if any) disclose all material liabilities, direct or contingent, of the
Borrower and its Subsidiaries, as of the dates thereof required to be disclosed
by GAAP. The financial statements referred to in this Section 3.07 have been
prepared in accordance with GAAP consistently applied. The financial projections
referred to in this Section 3.07 present the Borrower's current estimate of the
future financial performance of the Borrower and its Subsidiaries based on
historical performance and the Borrower's knowledge of its business plans and
assumptions underlying them, but subject to uncertainties applicable to
projections of future financial performance.
SECTION 3.08. Federal Reserve Regulation. Neither the Borrower nor any of
its Subsidiaries is engaged in the business of extending credit for the purpose
of purchasing or carrying Margin Stock, and no part of the proceeds of the Loans
will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend
credit to others for the purpose of purchasing or carrying Margin Stock or to
refund indebtedness originally incurred for such purpose, or (ii) for any
purpose which entails a violation of, or which is inconsistent with, the
provisions of the Regulations of the Board, including, without limitation,
Regulation T, U or X thereof. If requested by any Lender, the Borrower and any
Subsidiary (other than ACE Funding) thereof shall furnish to such Lender a
statement on Federal Reserve Form U-1 referred to in said Regulation U.
SECTION 3.09. Taxes. The Borrower and each of its Subsidiaries has filed
or caused to be filed all federal, state, local, foreign and payroll tax
returns, reports and filings, as the case may be, required to be filed by it, on
or prior to the date hereof, other than tax returns, reports or filings that (a)
are not payroll, franchise, capital or income taxes, (b) in the aggregate are
not material and (c) would not, if unpaid, result in the imposition of any Lien
on any property or assets of the Borrower or any of its Subsidiaries. The
Borrower and each of its Subsidiaries has paid or caused to be paid all taxes
shown to be due and payable on such filed returns, reports or on any assessments
received by it, other than (i) any taxes or assessments the validity of which
the Borrower or such Subsidiary is contesting in good faith by appropriate
proceedings, and with respect to which the Borrower or such Subsidiary has set
aside on its books cash reserves in an amount not less than the aggregate amount
secured by such Liens (including, without limitation, the amount of taxes and
assessments being contested and any interest and penalties payable in respect
thereof) and (ii) taxes other than payroll, income, capital or franchise taxes
that in the aggregate are not material and which would not, if unpaid, result in
the imposition of any Lien on any property or assets of the Borrower or any of
its Subsidiaries. No federal income tax returns of the Borrower or any of its
Subsidiaries have been audited by the United States Internal Revenue Service and
neither the Borrower, nor any of its Subsidiaries has requested or been granted
any extension of time to file any federal, state, local or foreign tax return.
SECTION 3.10. Employee Benefit Plans. With respect to the provisions of
ERISA:
(i) No Reportable Event has occurred or is continuing with respect
to any Pension Plan.
(ii) To the Borrower's knowledge, no prohibited transaction (within
the meaning of Section 406 of ERISA or Section 4975 of the Code) has
occurred with respect to any Plan subject to Part 4 of Subtitle B of Title
I of ERISA.
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(iii) Neither the Borrower nor any ERISA Affiliate is now, nor has
been during the preceding five (5) years, obligated to contribute to a
Pension Plan or a Multiemployer Plan. Neither the Borrower nor any ERISA
Affiliate has (A) ceased operations at a facility so as to become subject
to the provisions of Section 4062(e) of ERISA, (B) withdrawn as a
substantial employer so as to become subject to the provisions of Section
4063 of ERISA, (C) ceased making contributions to any Pension Plan subject
to the provisions of Section 4064(a) of ERISA to which the Borrower or any
ERISA Affiliate made contributions, (D) incurred or caused to occur a
"complete withdrawal" (within the meaning of Section 4203 of ERISA) or a
"partial withdrawal" (within the meaning of Section 4205 of ERISA) from a
Multiemployer Plan that is subject to the provisions of Title IV of ERISA
so as to incur withdrawal liability under Section 4201 of ERISA (without
regard to subsequent reduction or waiver of such liability under Section
4207 or 4208 of ERISA), or (E) been a party to any transaction or
agreement under which the provisions of Section 4204 of ERISA were
applicable.
(iv) No notice of intent to terminate a Pension Plan has been
filed, nor has any Plan been terminated pursuant to the provisions of
Section 4041(e) of ERISA.
(v) The PBGC has not instituted proceedings to terminate (or
appoint a trustee to administer) a Pension Plan and, to Borrower's
knowledge, no event has occurred or condition exists which might
constitute grounds under the provisions of Section 4042 of ERISA for the
termination of (or the appointment of a trustee to administer) any such
Pension Plan.
(vi) With respect to each Pension Plan that is subject to the
provisions of Title I, Subtitle B, Part 3 of ERISA, the funding method
used in connection with such Pension Plan is acceptable under ERISA, and
the actuarial assumptions and methods used in connection with funding such
Pension Plan satisfy the requirements of Section 302 of ERISA. The assets
of each such Pension Plan (other than the Multiemployer Plans) are at
least equal to the present value of the greater of (i) accrued benefits
(both vested and non-vested) under such Pension Plan, or (ii) "benefit
liabilities" (within the meaning of Section 4001(a)(16) of ERISA) under
such Pension Plan, in each case as of the latest actuarial valuation date
for such Pension Plan (determined in accordance with the same actuarial
assumptions and methods as those used by the Pension Plan's actuary in its
valuation of such Pension Plan as of such valuation date). No such Pension
Plan has incurred any "accumulated funding deficiency" (as defined in
Section 412 of the Code), whether or not waived.
(vii) There are no actions or suits pending (other than routine
actions for benefits) or, to the knowledge of the Borrower or any of its
Subsidiaries, which could reasonably be expected to be asserted, against
any Plan or the assets of any such Plan. No civil or criminal action
brought pursuant to the provisions of Title I; Subtitle B, Part 5 of ERISA
is pending or threatened against any fiduciary or any Plan. To the
knowledge of the Borrower, none of the Plans or any fiduciary thereof (in
its capacity as such) has been the direct or indirect subject of any
audit, investigation or examination by any governmental or
quasi-governmental agency.
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(viii) All of the Plans comply currently, and have complied in the
past, in all material respects, both as to form and operation, with their
terms and with the provisions of ERISA and the Code, and all other
applicable laws, rules and regulations; all necessary governmental
approvals for the Plans have been obtained and a favorable determination
as to the qualification under Section 401(a) of the Code of each of the
Plans which is an employee pension benefit plan (within the meaning of
Section 3(2) of ERISA) has been made by the Internal Revenue Service and a
recognition of exemption from federal income taxation under Section 501(a)
of the Code of each of the funded employee welfare benefit plans (within
the meaning of Section 3(l) of ERISA) has been made by the Internal
Revenue Service, and nothing has occurred since the date of each such
determination or recognition letter that would adversely affect such
qualification.
SECTION 3.11. No Material Misstatements. No information, report, financial
statement, exhibit or schedule prepared by or on behalf of the Borrower and
delivered to the Administrative Agent or any Lender in connection with any of
the Credit Transactions, this Agreement or the other Credit Documents, or
included therein, contained or contains any material misstatement of fact or
omitted 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, when taken as a whole, and as of the date such information, report,
financial statement, exhibit or schedule is or was prepared.
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any of its Subsidiaries is an "investment company" as
defined in, or is otherwise subject to regulation under, the Investment Company
Act of 1940. Neither the Borrower nor any of its Subsidiaries is a "holding
company" as that term is defined in or is otherwise subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The proceeds of each Loan shall be used to
extend and renew in full all Revolving Credit Loans and Seasonal Revolving
Credit Loans outstanding under, and as defined in, the Existing Credit Agreement
and to fund working capital requirements, and for other proper corporate
purposes of the Borrower not otherwise prohibited by the terms hereof. Neither
the Borrower nor any of its Subsidiaries will use proceeds of any Loan for the
purpose of acquiring, or attempting to acquire, control of any Person unless
such acquisition or attempted acquisition is pursuant to an agreement with such
Person or is not resisted by such Person.
SECTION 3.14. Subsidiaries. Schedule 3.14 hereto sets forth (a) each
Subsidiary of the Borrower, (b) its jurisdiction of incorporation, (c) the
states in which it conducts business, (d) the states in which it is qualified to
transact business, (e) its equity ownership and (f) any trade names used by it.
SECTION 3.15. Title to Properties; Possession Under Leases; Trademarks.
(a) The Borrower and each of its Subsidiaries has good and marketable
title to, or valid leasehold interest in, all of its respective properties and
assets shown on the most recent balance sheet referred to in Section 3.07 hereof
and all assets and properties acquired since the date of such balance sheet,
except for such properties as are no longer used or useful in the
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conduct of its business or as have been disposed of in the ordinary course of
business, and except for minor defects in title or leasehold interest that do
not interfere in any material respect with the ability of the Borrower or such
Subsidiary to conduct its business as now conducted. All such assets and
properties are free and clear of all Liens other than Permitted Liens. The
Security Documents create and grant to Administrative Agent a valid and
perfected security interest in the Collateral thereunder, subject only to
Permitted Liens.
(b) The Borrower and each of its Subsidiaries has complied with all
obligations under all leases to which it is a party and under which it is in
occupancy, except where the failure to comply has not or is not reasonably
expected to have a Material Adverse Effect; and all such leases are in full
force and effect and the Borrower and each of its Subsidiaries enjoys peaceful
and undisturbed possession under all such leases.
(c) (i) The Borrower and each of its Subsidiaries owns or has the right
to use all material permits, trademarks, trademark rights, trade names, trade
name rights, copyrights, patents, patent rights and licenses which are necessary
for the conduct of its business as now conducted, (ii) to the Borrower's
knowledge, neither the Borrower nor any of its Subsidiaries is infringing upon
or otherwise acting adversely to any of such material trademarks, trademark
rights, trade names, trade name rights, copyrights, patent rights or licenses
owned by any other Person or Persons; (iii) there is no suit or action by any
such other Person pending or, to the knowledge of Borrower, threatened in
writing against the Borrower or any of its Subsidiaries with respect to any of
the rights or property referred to in this Section 3.15(c); (iv) Schedule
3.15(c) lists all of Borrower's trademarks, patents, copyrights, and
applications therefor.
(d) Schedule 3.15(d) lists (i) all Deposit Accounts maintained by
Borrower as of the date hereof, (ii) all Deposit Accounts maintained by
Borrower's Subsidiaries (other than ACE Funding) as of the date hereof, (iii)
each armored courier service that transports Collateral as of the date hereof,
and (iv) all agreements with armored courier services which transport Collateral
to which either the Borrower or a Subsidiary of the Borrower (other than ACE
Funding) is a party as of the date hereof.
SECTION 3.16. Solvency.
(a) Without regard to ACE Funding, the present fair salable value of the
assets of the Borrower and its Consolidated Subsidiaries is not less than the
amount that will be required to be paid on or in respect of the probable
liability on the existing debts and other liabilities (including contingent
liabilities) of the Borrower and its Consolidated Subsidiaries, as they become
absolute and mature.
(b) Without regard to ACE Funding, the assets of the Borrower and its
Consolidated Subsidiaries do not constitute unreasonably small capital for the
Borrower and its Consolidated Subsidiaries to carry out their business as now
conducted and as now proposed to be conducted including the capital needs of the
Borrower and its Consolidated Subsidiaries, taking into account the particular
capital requirements of the business conducted, by the Borrower and its
Consolidated Subsidiaries and projected capital requirements and capital
availability thereof.
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(c) Without regard to ACE Funding, neither the Borrower nor any of its
Consolidated Subsidiaries intends to incur debts beyond its ability to pay such
debts as they mature. Without regard to ACE Funding, the cash flow of the
Borrower and its Consolidated Subsidiaries, after taking into account all
currently anticipated uses of the cash of the Borrower and its Consolidated
Subsidiaries, will be sufficient to pay all such amounts on or in respect of
debt of the Borrower and its Consolidated Subsidiaries when such amounts are
required to be paid.
(d) Neither the Borrower nor any of its Consolidated Subsidiaries
believes that final judgments against it in actions for money damages presently
pending will be rendered at a time when, or in an amount such that, it will be
unable to satisfy any such judgments promptly in accordance with their terms
(taking into account the maximum reasonable amount of such judgments in any such
actions and the earliest reasonable time at which such judgments might be
rendered). Without regard to ACE Funding, the cash flow of the Borrower and its
Consolidated Subsidiaries, after taking into account all other anticipated uses
of the cash of the Borrower and its Consolidated Subsidiaries (including the
payments on or in respect of debt referred to in paragraph (c) of this Section
3.16), will at all times be sufficient to pay all such judgments promptly in
accordance with their terms.
SECTION 3.17. Permits, Etc. The Borrower and each of its Subsidiaries
possesses all licenses, permits, approvals and consents of all federal, state
and local governmental authorities as required to lawfully conduct its business,
except where the failure to obtain any such license, permit, approval or consent
does not or is not likely to have a Material Adverse Effect.
SECTION 3.18. Compliance with Environmental Laws. Except as disclosed on
Schedule 3.18 (a) neither the Borrower nor any of its Subsidiaries, or to the
best of Borrower's knowledge after due investigation, no other Person
(including, without limitation, any previous owner, lessor or sublessor of
property of the Borrower or any of its Subsidiaries), has generated, used,
treated, stored, released or disposed of Hazardous Materials or other toxic
substances on any of its properties or any of the properties (whether owned,
leased, subleased or used by such Person) in violation of any Environmental
Legislation and (b) to the best of the Borrower's knowledge after due
investigation, there has been no spill, release, disposal or any other discharge
of Hazardous Materials or other toxic substances on or from any properties
owned, leased, subleased or used by the Borrower or any of its Subsidiaries
that, in any such case, could reasonably be expected to subject the Borrower,
any of its Subsidiaries or any shareholders of any thereof to material
liability.
SECTION 3.19. Labor Matters.
(i) The Borrower and each of its Subsidiaries has complied in all
material respects with all applicable laws relating to the employment of
labor, including provisions relating to wages, hours, equal opportunity,
collective bargaining, age and sex discrimination and the withholding and
payment of social security and other Taxes.
(ii) There have not been any material labor problems or work
stoppages involving the Borrower or any of its Subsidiaries or, to the
knowledge of the Borrower, any application filed by a union or employee
thereof with the National Labor Relations Board.
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(iii) To the knowledge of the Borrower, there are no (a) unfair
labor practice charges or complaints pending or threatened against the
Borrower or any of its Subsidiaries; (b) labor strikes, disputes, slow
downs or stoppages pending or threatened against the Borrower or any of
its Subsidiaries; (c) formal employee grievances filed with or against the
Borrower or any of its Subsidiaries or threatened against the Borrower or
any of its Subsidiaries; and (d) trade union organizing efforts underway
in any facility of the Borrower or any of its Subsidiaries.
(iv) Neither the Borrower nor any of its Subsidiaries has violated,
has liability under, or has received a written notice or charge asserting
any violation of or liability under, the federal Occupational Safety and
Health Act of 1970 or any other federal, state or foreign acts (including
rules and regulations thereunder) regulating or otherwise affecting
employee health and safety.
(v) To the knowledge of the Borrower, there are no uninsured
workers' compensation claims pending or threatened against the Borrower or
any of its Subsidiaries. Neither the Borrower nor any of its Subsidiaries
is liable for any retroactive workers' compensation insurance premiums
relating to any period of time prior to the Closing Date in excess of
reserves set aside for the payment of such premiums on the Borrower's
latest audited financial statements.
(vi) To the knowledge of the Borrower without independent inquiry,
none of the Borrower's or any of its Subsidiary's employees or partners is
subject to any secrecy or noncompetition agreement or any other agreement
or restriction of any kind that would impede their ability to carry out
the responsibilities of such Person to the Borrower or its Subsidiaries.
(vii) The qualifications for employment of each of the Borrower's
and its Subsidiaries' employees under applicable immigration laws have
been reviewed by the Borrower or the applicable Subsidiary and a properly
completed Form I-9 is on file with the Borrower or the applicable
Subsidiary for each employee. The Borrower and each of its Subsidiaries
has complied with the U.S. Immigration and Nationality Act, as amended
from time to time, and the rules and regulations promulgated thereunder,
and to the knowledge of the Borrower, there is no basis for any claim that
the Borrower or any of its Subsidiaries is not in compliance with the
terms thereof.
SECTION 3.20. Side Agreements. Neither the Borrower, its Subsidiaries, nor
any their Affiliates, nor any director, officer or employee of the Borrower, its
Subsidiaries, or any of their Affiliates, respectively, has entered into, as of
the date hereof, any side agreement, either oral or written, with any individual
or business, pursuant to which the director, officer, employee, the Borrower,
any Subsidiary of the Borrower, or any or their Affiliates agreed to do anything
beyond the requirements of the formal, written contracts executed by the
Borrower or its Subsidiaries and disclosed to Administrative Agent and Lenders
herein.
SECTION 3.21. GENERAL. THERE ARE NO MATERIAL FACTS OR CONDITIONS RELATING
TO THE CREDIT DOCUMENTS, ANY OF THE COLLATERAL, THE FINANCIAL CONDITION OR THE
BUSINESS OF THE
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BORROWER OR ANY OF ITS SUBSIDIARIES WHICH COULD, INDIVIDUALLY OR COLLECTIVELY,
CAUSE A MATERIAL ADVERSE EFFECT WHICH HAVE NOT BEEN RELATED IN WRITING TO THE
LENDERS. ALL WRITINGS HERETOFORE OR HEREAFTER EXHIBITED OR DELIVERED TO THE
ADMINISTRATIVE AGENT OR ANY LENDER BY OR ON BEHALF OF BORROWER OR ANY OF ITS
SUBSIDIARIES ARE AND WILL BE GENUINE AND IN ALL RESPECTS WHAT THEY PURPORT AND
APPEAR TO BE.
ARTICLE IV. CONDITIONS OF CREDIT EVENTS
The obligation of each Lender to make Loans shall be subject to the
following conditions precedent:
SECTION 4.01. All Credit Events. On each date on which a Credit Event is
to occur:
(a) The Administrative Agent shall have received a Borrowing Notice as
required by Section 2.03 or Section 2.14 hereof, as applicable.
(b) The representations and warranties set forth in Article III hereof
and in any documents delivered herewith shall be true and correct in all
material respects with the same effect as though made on and as of such date
(except insofar as such representations and warranties relate expressly to an
earlier date).
(c) The Borrower shall be in compliance with all the terms and
provisions contained herein on its part to be observed or performed, and at the
time of and immediately after such borrowing or issuance of such Letter of
Credit no Default or Event of Default shall have occurred and be continuing.
SECTION 4.02. First Credit Event. The obligation of each Lender in respect
of the first Credit Event is subject to the following additional conditions
precedent:
(a) The Lenders shall have received the favorable written opinion of
counsel for the Borrower and each of the Guarantors, dated the Closing Date,
addressed to the Lenders and satisfactory to the Administrative Agent and its
counsel.
(b) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation or constitutive documents, in each case
as amended, of the Borrower and each of the Guarantors and a certificate as to
the good standing of each such Person from the Secretary of State or other
appropriate official of the state of such Person's organization, in each case
dated as of a recent date; (ii) a certificate of the Secretary of the Borrower
and each of the Guarantors, dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of its bylaws as in effect on the
date of such certificate and at all times since a date prior to the date of the
resolution described in clause (B) below, (B) that attached thereto is a true
and complete copy of a resolution adopted by its Board of Directors authorizing
the execution, delivery and performance of the Credit Documents to which it is a
party, and that such resolution has not been modified, rescinded or amended and
is in full force and effect, (C) that its certificate or articles of
incorporation or constitutive documents have not been amended since the date of
the last amendment thereto shown on the certificate of good standing furnished
pursuant to
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clause (i) above, and (D) as to the incumbency and specimen signature of each of
its officers executing the Credit Documents to which it is a party; (iii) a
certificate of another of its officers as to incumbency and signature of its
Secretary; and (iv) such other documents as the Administrative Agent, the
Administrative Agent's legal counsel or any Lender may reasonably request.
(c) The Administrative Agent shall have received certificates, dated the
Closing Date and the date of the first Credit Event and signed by a Responsible
Officer of the Borrower, confirming compliance with the conditions precedent set
forth in paragraphs (b) and (c) of Section 4.01 hereof and the conditions set
forth in this Section 4.02, which certificate shall include a schedule with
calculations demonstrating the Borrower's compliance with the covenants
contained in Sections 6.07, 6.08, 6.09, and 6.10 hereof as of the most recent
accounting period for which financial statements would be required hereunder.
(d) Each Lender requesting the same shall have received its Revolving
Credit Note and its Seasonal Revolving Credit Note duly executed by the Borrower
payable to its order and otherwise complying with the provisions of Section 2.04
hereof.
(e) The Administrative Agent and the Lenders shall have received and
determined to be in form and substance satisfactory to them (i) copies of the
financial statements described in Section 3.07 hereof; and (ii) the
Administrative Agent shall be satisfied that the Credit Transactions are in
compliance with all applicable laws and regulations.
(f) The Administrative Agent shall have received evidence, in form and
substance satisfactory to the Administrative Agent, that the Administrative
Agent has valid and first priority security interests in and Liens upon the
Collateral and any other property which is intended to be security for the
Obligations in accordance with the terms of the Security Documents, subject only
to Permitted Liens.
(g) The Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent, all consents, waivers, acknowledgments
and other agreements from third Persons which the Administrative Agent may deem
necessary or desirable in order to permit, protect and perfect the
Administrative Agent's security interests in and Liens upon the Collateral or to
effectuate the provisions or purposes of this Agreement and the other Credit
Documents.
(h) The Administrative Agent shall have received Borrower's Form 10-K
filed with the Securities and Exchange Commission for the period ending June 30,
2003 and Borrower's Form 10-Q filed with the Securities and Exchange Commission
for the periods ending September 30, 2003, December 31, 2003 and March 31, 2004.
(i) The Lenders, the Administrative Agent, and its counsel shall have
received all fees required to be paid by the Borrower, and payment in full of
all expenses for which the Borrower is liable and for which invoices have been
presented.
(j) All governmental and third party approvals necessary or advisable in
connection with the financing contemplated hereby and the continuing operations
of the Borrower and its Subsidiaries shall have been obtained, and delivered to
Administrative Agent and be in full force
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and effect, to the extent that a failure to obtain the same could reasonably be
expected to have a Material Adverse Effect.
(k) The Credit Documents and all instruments and documents hereunder and
thereunder shall have been duly executed by the parties thereto and delivered to
the Administrative Agent, in form and substance satisfactory to the
Administrative Agent .
(l) All Liens encumbering the Collateral, other than Permitted Liens,
shall have been released and all existing financing statements which relate to
such Liens shall have been terminated.
(m) The Borrower and certain of its Subsidiaries other than ACE Funding
shall have duly executed and delivered to the Administrative Agent certain
Omnibus Confirmation Agreements in the form of Exhibits E hereto.
(n) The Administrative Agent shall have received the Intercreditor
Agreement, duly executed by the Borrower and Travelers.
(o) The Administrative Agent and the Lenders shall be satisfied that
there are no actions, suits or proceedings at law or in equity or by or before
any governmental instrumentality or other agency or regulatory authority now
pending or threatened against or affecting the Borrower or any of its
Subsidiaries or any of their respective businesses, assets or rights which would
materially and adversely affect any of the Credit Transactions.
(p) Borrower shall have used its best efforts to cause all financial
institutions at which Borrower's and its Subsidiaries' (other than ACE Funding)
deposits are maintained to have executed and delivered a Letter Agreement
substantially in the form of Exhibit F-1 or F-2 attached hereto to the extent
such Letter Agreements have not been previously provided in connection with the
Existing Credit Agreement, and Administrative Agent shall be satisfied that a
sufficient number of such financial institutions have executed and delivered
such a Letter Agreement.
(q) Borrower shall have used its best efforts to cause all armored
couriers which transport cash and checks for the Borrower and its Subsidiaries
(other than ACE Funding) to have executed and delivered a Letter Agreement
substantially in the form of Exhibit G attached hereto to the extent such Letter
Agreements have not been previously provided in connection with the Existing
Credit Agreement, and Administrative Agent shall be satisfied that a sufficient
number of such armored couriers have executed and delivered such a Letter
Agreement.
(r) The Borrower and its Subsidiaries (other than ACE Funding) shall
have delivered to the Administrative Agent a Borrowing Base Report and a
certificate of a Responsible Officer of the Borrower certifying: (i) the account
number of each deposit account in which such Persons maintain deposits; (ii) the
correct legal name of each financial institution which maintains each such
deposit account; (iii) whether each such financial institution has executed a
Letter Agreement; (iv) the name of each armored courier which transports cash
and checks for such Persons; and (v) whether such armored courier has executed a
Letter Agreement.
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(s) Immediately prior to the effectiveness of this Agreement, there
shall have been no Default or Event of Default under and as defined in the
Existing Credit Agreement.
(t) The Administrative Agent shall have received Borrower's financial
projections for the period through June 30, 2008.
(u) All other legal matters in connection with the Credit Transactions
shall be satisfactory to the Administrative Agent, the Lenders and their
respective legal counsel.
(v) The Administrative Agent shall have received such other documents as
the Administrative Agent, or the Administrative Agent's legal counsel shall
reasonably deem necessary.
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect, or the principal of or interest on any Loan or
Note, Commitment Fee or any fee, expense or amount payable hereunder or in
connection with any of the Credit Transactions shall be unpaid, unless the
Required Lenders shall otherwise consent in writing, it will, and will cause
each of its Subsidiaries and, with respect to Section 5.07 hereof, each ERISA
Affiliate to:
SECTION 5.01. Legal Existence. Do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence, except
as otherwise permitted under Section 6.05 hereof and except for the dissolution
or other cessation of existence of any Subsidiary of the Borrower which the
Borrower has determined to be unnecessary for the conduct of its business.
SECTION 5.02. Businesses and Properties. At all times (a) do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect the rights, licenses, permits, franchises, patents, copyrights,
trademarks and trade names material to the conduct of its businesses; (b)
maintain and operate such businesses in the same general manner in which they
are presently conducted and operated; (c) comply with all laws, rules,
regulations and governmental orders (whether federal, state or local) applicable
to the operation of such businesses, whether now in effect or hereafter enacted
(including, without limitation, all applicable laws, rules, regulations and
governmental orders relating to environmental protection and to public and
employee health and safety) the lack of compliance with which could reasonably
be expected to have a Material Adverse Effect; (d) take all actions which may be
required to obtain, preserve, renew and extend all licenses, permits, franchises
and other authorizations which are material to the operation of such businesses;
and (e) at all times maintain, preserve and protect all property material to the
conduct of such businesses and keep such property in good repair, working order
and condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements of such
property necessary in order to continue its business as currently conducted.
Without limitation of the foregoing, after Borrower obtains knowledge that it
does not have a license, permit, or other authorization from a Governmental
Authority to conduct any facet of its or any of its Subsidiary's (other than ACE
Funding) business, Borrower shall (i) apply for such license,
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permit, or other authorization within the earlier of (A) 30 days after Borrower
obtains such knowledge or (B) the date stated by any Governmental Authority
before which Borrower is required to apply for such license, permit, or other
authorization and (ii) diligently thereafter pursue the obtaining of such
license, permit, or other authorization.
SECTION 5.03. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers, (b) maintain
such other insurance, to such extent and against such risks, including casualty
and business interruption and other risks insured against by extended coverage,
as is customary with companies similarly situated and in the same or similar
businesses, naming Administrative Agent as loss payee and additional insured,
(c) maintain in full force and effect public liability insurance against claims
for personal injury or death or property damage occurring upon, in, about or in
connection with the use of any properties owned, occupied or controlled by the
Borrower or any of its Subsidiaries, in such amount as the Borrower or such
Subsidiary shall reasonably deem necessary and, as to Borrower and its
Subsidiaries other than ACE Funding, naming Lenders as loss payee and additional
insured, and (d) maintain such other insurance as may be required by law or as
may be reasonably requested by the Administrative Agent for purposes of assuring
compliance with this Section 5.03, and naming Administrative Agent as loss payee
and additional insured.
SECTION 5.04. Taxes. Pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise, which, if unpaid, might give rise to Liens upon such
properties or any part thereof, other than any taxes or assessments the validity
of which is being contested by it in good faith by appropriate proceedings, and
with respect to which it has set aside on its books cash reserves in an amount
not less than the aggregate amount secured by such Liens (including, without
limitation, the amount of taxes and assessments being contested and any interest
and penalties payable in respect thereof). The Borrower and each of its
Subsidiaries promptly shall make all required payments, deposits and filings
with respect to payroll tax reporting and liability when due.
SECTION 5.05. Financial Statements, Reports, Etc. Furnish to the
Administrative Agent and each Lender:
(a) within ninety (90) days after the end of each Fiscal Year or such
earlier time as the same are required to be filed with the Securities and
Exchange Commission under applicable law, audited Consolidated and unaudited
consolidating, balance sheets and statements of income, expenses and retained
earnings, showing the Consolidated financial condition of the Borrower and its
Consolidated Subsidiaries (including, in each case, ACE Funding) as of the close
of such Fiscal Year and the results of their operations during such year, and
audited Consolidated statements of shareholders' equity and cash flow of the
Borrower and its Consolidated Subsidiaries as of the close of such Fiscal Year,
all the foregoing financial statements referred to above to be in reasonable
detail and stating in comparative form the figures as at the end of and for the
previous Fiscal Year and to be audited by independent public accountants of
recognized national standing acceptable to the Administrative Agent, which
report shall not contain any qualification except with respect to new accounting
principles mandated by the Financial
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Accounting Standards Board and be in form reasonably acceptable to the
Administrative Agent, together with a copy of the Borrower's SEC Form 10-K filed
for such prior Fiscal Year;
(b) within forty-five (45) days after the end of each quarter (except
for any quarters ending on the last day of a Fiscal Year) in each Fiscal Year,
unaudited Consolidated and, if requested by Administrative Agent, consolidating
balance sheets and statements of income, expenses and retained earnings showing
the Consolidated financial condition of the Borrower and its Consolidated
Subsidiaries (including, in each case, ACE Funding) as of the end of each such
fiscal quarter and the results of operations of the Borrower and its
Consolidated Subsidiaries as of the end of each such fiscal quarter, and
unaudited Consolidated statements of shareholders' equity and cash flow of the
Borrower and its Consolidated Subsidiaries as of the end of each such fiscal
quarter, each of the foregoing financial statements referred to above to be in
reasonable detail and stating in comparative form the figures as at the end of
and for the comparable periods of the preceding Fiscal Year and to be prepared
and certified by a Responsible Officer of the Borrower as presenting fairly in
all material respects the Consolidated financial condition and results of
operations of the Borrower and its Consolidated Subsidiaries and as having been
prepared in accordance with GAAP consistently applied, in each case subject to
normal year-end audit adjustments and the absence of footnotes, together with a
copy of the Borrower's SEC Form 10-Q filed for such fiscal quarter;
(c) concurrently with any delivery of (i) audited financial statements
as of the close of each of the Borrower's Fiscal Years pursuant to clause (a)
above, and (ii) unaudited financial statements as of the close of each of the
Borrower's fiscal quarters pursuant to clause (b) above, a Compliance
Certificate by a Responsible Officer of the Borrower, together with computations
and work papers demonstrating compliance, as of the dates of the financial
statements being furnished at such time, with the financial covenants set forth
in Section 6.07 through 6.10 hereof;
(d) no later than 3:00 p.m. Dallas, Texas time on Wednesday of each
week, a Borrowing Base Report covering the period from Sunday of the prior week
through Saturday of such prior week and a Cash Holdings Report as of the last
day of such period, each certified by a Responsible Officer of the Borrower;
(e) copies of such registration statements, annual, periodic and other
reports, and such proxy statements, financial information and other information,
if any, as shall be filed by the Borrower or any of its Subsidiaries with the
Securities and Exchange Commission pursuant to the requirements of the
Securities Act of 1933 or the Securities Exchange Act of 1934, as soon as
possible after such statements or information are publicly available;
(f) within thirty (30) days after the beginning of each Fiscal Year,
commencing with Borrower's Fiscal Year beginning July 1, 2004, financial
operation projections for the Borrower and its Subsidiaries for the next three
(3) Fiscal Years and projections for the first such Fiscal Year on a quarterly
basis prepared by management and in form consistent with the financial
projections provided prior to the Closing Date, accompanied by a written
certificate signed by the chief financial officer of Borrower to the effect that
such projections have been prepared on the basis of the Borrower's historical
Consolidated financial statements and records, together with the assumptions set
forth in such projections, and that such projections reasonably reflect
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the expectations, after considered analysis, of the Borrower's management as to
the matters set forth therein;
(g) promptly upon a Responsible Officer of the Borrower becoming aware
thereof, notice to the Administrative Agent of the breach by any party of any
material agreement with the Borrower or any of its Subsidiaries;
(h) promptly upon a Responsible Officer of the Borrower becoming aware
thereof, notice to the Administrative Agent of any "default" or "event of
default" under any other agreement, document or instrument representing
Indebtedness in excess of one million dollars ($1,000,000);
(i) all management reports delivered to Borrower in connection with the
financial statements delivered pursuant to Section 5.05(a);
(j) prior to the consummation of the same, written notice of (i) all
issuances or sales of Equity Interests permitted under Section 6.04 and (ii) all
asset sales that are permitted under Section 6.05;
(k) within ten (10) days after the end of each month, a Certificate of
Update;
(l) such other information as the Administrative Agent or any Lender may
reasonably request; and
(m) promptly after the Borrower has notified the Administrative Agent of
any intention by the Borrower to treat the Loans and/or Letters of Credit as
being a "reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form.
SECTION 5.06. Litigation and Other Notices. Give the Administrative Agent
written notice promptly after a Responsible Officer of the Borrower becoming
aware thereof, but in any event within five (5) Business Days, of the following:
(a) the issuance by any court or governmental agency or authority of any
injunction, order, decision or other restraint against the Borrower or a
Guarantor prohibiting, or having the effect of prohibiting, the making of the
Loans, or invalidating, or having the effect of invalidating, any provision of
this Agreement, any of the Loans, any of the Notes, any other Credit Document or
the first priority Lien of the Administrative Agent on the Collateral or the
initiation of any litigation or similar proceeding seeking any such injunction,
order, decision or other restraint;
(b) the filing or commencement of any action, suit or proceeding against
the Borrower or any of its Subsidiaries, whether at law or in equity or by or
before any court or any federal, state, municipal or other governmental agency
or authority which, if adversely determined, could reasonably be expected to:
(i) result in liability of the Borrower or any of its Subsidiaries in an amount
of one million five hundred thousand dollars ($1,500,000) or more; or (ii) have
a Material Adverse Effect if there were an adverse determination against the
Borrower or any Subsidiary;
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(c) any Default or Event of Default, specifying the nature and extent
thereof and the action (if any) which is proposed to be taken with respect
thereto; and
(d) any development in the business or affairs of the Borrower or any of
its Subsidiaries which management reasonably expects could have a Material
Adverse Effect.
SECTION 5.07. ERISA.
(a) Pay and discharge promptly any liability imposed upon it pursuant to
the provisions of Title IV of ERISA; provided, however, that neither the
Borrower nor any ERISA Affiliate shall be required to pay any such liability if
(i) the amount, applicability or validity thereof shall be diligently contested
in good faith by appropriate proceedings, and (ii) such Person shall have set
aside on its books reserves which, in the opinion of a Responsible Officer of
such Person, are adequate with respect thereto.
(b) Deliver to the Administrative Agent, promptly, and in any event
within thirty (30) days, after (i) the Borrower becomes aware of the occurrence
of any Reportable Event, a copy of the materials that are filed with the PBGC,
or the materials that would have been required to be filed if the thirty-day
notice requirement to the PBGC was not waived, (ii) the Borrower or any ERISA
Affiliate or an administrator of any Pension Plan files with participants,
beneficiaries or the PBGC a notice of intent to terminate any such Plan, a copy
of any such notice, (iii) the Borrower or any ERISA Affiliate or an
administrator of any Pension Plan receives notice from the PBGC of the PBGC's
intention to terminate any Pension Plan or to appoint a trustee to administer
any such Plan, a copy of such notice, (iv) the Borrower or any ERISA Affiliate
knows of any event or condition which could reasonably be expected to constitute
grounds under the provisions of Section 4042 of ERISA for the termination of (or
the appointment of a trustee to administer) any Pension Plan, an explanation of
such event or condition, (v) the receipt by the Borrower or any ERISA Affiliate
receives an assessment of withdrawal liability under Section 4201 of ERISA from
a Multiemployer Plan, a copy of such assessment, (vi) the Borrower or any ERISA
Affiliate knows of any event or condition which could reasonably be expected to
cause any one of them to incur a liability under Section 4062, 4063, 4064 or
4069 of ERISA or Section 412(n) or 4971 of the Code, an explanation of such
event or condition, and (vii) the Borrower or any ERISA Affiliate knows that an
application is to be, or has been, made to the Secretary of the Treasury for a
waiver of the minimum funding standard under the provisions of Section 412 of
the Code, a copy of such application, and in each case described in clauses (i)
through (iii) and clauses (iv) through (vi) together with a statement signed by
a Responsible Officer setting forth details as to such Reportable Event, notice,
event or condition and the action which the Borrower or such ERISA Affiliate
proposes to take with respect thereto; provided, however, that the Borrower
shall not have any reporting obligation under this Section 5.07 with respect to
any Reportable Event, notice, event or condition which, when taken together with
all other Reportable Events, notices, events or conditions, could subject the
Borrower or any ERISA Affiliate to any taxes, penalties or other liabilities
which could not reasonably be expected to have a material adverse effect on the
financial condition of the Borrower or any ERISA Affiliate.
SECTION 5.08. Maintaining Records; Access to Properties and Collateral;
Inspections. Maintain financial records in accordance with accepted financial
practices and, upon prior
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written notice, permit any authorized representative designated by
Administrative Agent to visit and inspect Borrower's locations and the
Collateral subject to and consistent with the Borrower's security practices)
during regular business hours and the financial records of the Borrower and its
Subsidiaries, and permit any authorized representative designated by
Administrative Agent to discuss the affairs, finances and condition of the
Borrower with its Responsible Officers and its independent public accountants,
as applicable; provided, that upon the occurrence of an Event of Default, any of
the foregoing may be undertaken by any authorized representative designated by
any Lender. At the Borrower's expense (which expense shall not, prior to the
occurrence of any Default or Event of Default, exceed $15,000 during any Fiscal
Year), the Administrative Agent or Administrative Agent's designee shall have
the right to inspect, verify, and audit, up to two times annually (or, upon the
occurrence and during the continuance of an Event of Default, as often as the
Administrative Agent may request), the existence and condition of the Collateral
and the books and records of the Borrower and its Subsidiaries and their
compliance with the terms and conditions of this Agreement and the other Credit
Documents. The Required Lenders shall have the right to cause the Administrative
Agent to conduct any such inspection and verification upon written request.
Notwithstanding anything to the contrary contained herein, the Lenders and the
Administrative Agent agree to make reasonable efforts to coordinate each of the
foregoing visits and inspections through the Administrative Agent.
SECTION 5.09. Use of Proceeds. Use the proceeds of the Revolving Credit
Loans and the Seasonal Revolving Credit Loans as set forth in Section 3.13
hereof and only for such purposes.
SECTION 5.10. [RESERVED].
SECTION 5.11. Additional Guarantors and Pledge of Assets. Inform the
Administrative Agent within five (5) Business Days before the creation or
acquisition of any direct or indirect Subsidiary. The Borrower and the Lenders
intend that any such new Subsidiary of the Borrower shall obtain the benefit of
the Total Commitment and shall become a Guarantor pursuant to terms similar to
each Guarantor on the date hereof. Within fifteen (15) Business Days from the
acquisition or formation of any such additional Subsidiary, the Borrower shall
cause such Subsidiary (a) to promptly execute, in form and substance
satisfactory to the Administrative Agent, all documents necessary for such
Subsidiary to become a Guarantor hereunder (including a Guaranty Agreement
substantially in the form executed by the Guarantors as of the Closing Date),
and (b) to effect such Subsidiary's conveyance of a first priority Lien in its
assets (subject only to Permitted Liens) in favor of the Administrative Agent
for the benefit of the Lenders securing the Obligations pursuant to the Security
Documents. Any such additional Subsidiary's assets shall thereupon become part
of the Collateral, and such Subsidiary's Cash Holdings (and other assets
described in Section 1 of the Borrowing Base Report) shall thereupon become part
of the Borrowing Base; provided, however, that the Administrative Agent may, in
its sole discretion, audit and inspect such Subsidiary's assets (including,
without limitation, such Subsidiary's Cash Holdings) at the Borrower's expense,
and, if the results of such audit and inspection are not satisfactory to the
Administrative Agent in its sole discretion, such Subsidiary's Cash Holdings
shall no longer be part of the Borrowing Base. The Required Lenders shall have
the right to cause the Administrative Agent to conduct such an audit and
inspection upon written request and such audits and inspections shall be in
addition to the audits described in Section 5.08 hereof. In addition, within
fifteen (15) Business Days from the
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acquisition or formation of any additional Subsidiary of the Borrower, the
Borrower shall execute, or shall cause its Subsidiary to execute, as applicable,
all documents (including a Stock Pledge Agreement in form and content
substantially similar to other Stock Pledge Agreements) necessary to effect the
Borrower's or such Subsidiary's, as applicable, conveyance of a first priority
Lien in the capital stock of such additional Subsidiary in favor of the
Administrative Agent for the benefit of the Lenders securing the Obligations,
and such additional Subsidiary's capital stock shall thereupon become part of
the Collateral. If reasonably requested by the Administrative Agent, the
Borrower shall cause its legal counsel to deliver to the Administrative Agent,
simultaneously with the Credit Documents referred to in this Section 5.11, a
legal opinion containing opinions reasonably requested by the Administrative
Agent with respect to, if applicable, (i) the stock or asset acquisition, (ii)
the formation of such Subsidiary, (iii) the pledge of such Subsidiary's capital
stock to the Administrative Agent, (iv) the pledge of acquired assets to the
Administrative Agent and the perfection of the Administrative Agent's security
interest therein, (v) the addition of such Subsidiary as a Guarantor, and (vi)
such other matters reasonably related thereto; such legal opinion to be in form
and substance satisfactory to the Administrative Agent.
SECTION 5.12 Environmental Legislation.
(a) Comply in all material respects with all federal, state and local laws
or regulations applicable to it that have been enacted or adopted regulating the
discharge of substances into the environment or primarily for the purpose of
protecting the environment ("Environmental Legislation"), and provide written
notice to the Administrative Agent within five (5) days of the receipt by any
Responsible Officer of the Borrower of any notice of any violation of any
Environmental Legislation from any federal, state or local governmental
authority charged with enforcing such Environmental Legislation, which violation
alone, or together with other such violations, notice of which has been
previously or concurrently received, does have or could reasonably be expected
to have a Material Adverse Effect.
(b) In the event that any investigation, site monitoring, containment,
cleanup, removal, restoration or other remedial work of any kind or nature
("Remedial Work") with respect to any of the properties of the Borrower or any
of its Subsidiaries (whether owned, leased, subleased or used by such Person) is
required to be performed by the Borrower or any of its Subsidiaries under any
applicable local, state or federal law or regulation, any judicial order, or by
any governmental entity because of, or in connection with, the current or future
presence, suspected presence, release or suspected release of a hazardous
substance in or into the air, soil, groundwater, surface water or soil vapor,
commence all such Remedial Work for which the Borrower or such Subsidiary is
legally responsible under applicable federal, state or local law at or prior to
the time required therefor under applicable laws, regulations or orders and
thereafter diligently prosecute to completion all such Remedial Work in
accordance with and within the time allowed under such applicable laws,
regulations or orders of such governmental or nongovernmental entity, except
where the necessity of the conduct of Remedial Work or obligation of Borrower is
being contested in good faith in the manner provided by law or would not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.13. Pay Obligations to Lenders and Perform Other Covenants. Make
full and timely payment of the Obligations, whether now existing or hereafter
arising, and duly
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comply with all the terms and covenants contained in this Agreement (including,
without limitation, the borrowing limitations and mandatory prepayments in
accordance with Article II hereof) or in any other Credit Document at the times
and places and in the manner set forth herein or therein, as applicable.
SECTION 5.14. Assurances. Promptly execute and deliver any and all other
and further agreements, documents, instruments, and other writings which may be
requested by the Administrative Agent in good faith to cure any defect in the
execution and delivery of any Credit Document or more fully to describe
particular aspects of the agreements set forth in the Credit Documents or
intended to be set forth. Without limitation of the foregoing, the Borrower
shall use its best efforts to deliver to Administrative Agent (i) Letter
Agreements, substantially in the forms of Exhibit F-1 and F-2 attached hereto,
duly executed by the Administrative Agent, the Borrower and depository
institutions where the Borrower deposits its cash, checks or other remittances
and (ii) Letter Agreements, substantially in the form of Exhibit G attached
hereto, duly executed by the Administrative Agent, the Borrower and armored car
companies that transport Company's cash, checks or other remittances.
SECTION 5.15.Certain Changes. Notify the Administrative Agent at least
thirty (30) days prior to the date that any of the Borrower or any Guarantor
changes its name or the location of its chief executive office or principal
place of business or the place where it keeps its books and records or the
location of any of the Collateral.
SECTION 5.16. Assignment of Leases. At the request of Required Lenders, or
after the occurrence of an Event of Default at the request of Administrative
Agent, promptly execute and deliver, in form and substance satisfactory to
Administrative Agent, assignments of leases and/or leasehold deeds of trust with
respect to any real property leases of office space or real property leases
covering any of Borrower's or its Subsidiaries' stores; provided, however, that
Borrower and its Subsidiaries shall not be required to deliver an assignment of
lease with respect to any particular lease of office space or store if (i) the
consent of the relevant landlord is required as a condition to such assignment,
and (ii) despite its best efforts to do so, Borrower or its Subsidiary, as the
case may be, is unable to obtain such consent from the relevant landlord.
SECTION 5.17. Third-Party Payables. Pay, or otherwise perform in respect
of, all Third-Party Payables in accordance with the terms and provisions of the
agreements governing or otherwise relating to such Third-Party Payables.
SECTION 5.18. Interest Rate Hedging. From and after the Closing Date,
cause an amount equal to or greater than the Acceptable Sum of the principal
amount of the sum of all Funded Indebtedness of the Borrower and its
Subsidiaries (other than ACE Funding) to (i) bear interest at a fixed rate or
(ii) be subject to a Hedging Contract that is an Acceptable Hedging Contract,
each for a minimum term of one year. As used herein, "Acceptable Hedging
Contract" shall mean a Hedging Contract entered into by the Borrower or one of
its Subsidiaries (other than ACE Funding) with the purpose and effect of fixing
interest rates on a principal amount of Indebtedness of such Person that is
accruing interest at a variable rate, provided that (i) the aggregate notional
amount of such Hedging Contract never exceeds one hundred percent (100%) of the
anticipated outstanding principal amount of the Indebtedness to be hedged by
such Hedging Contract or an average of such principal balances calculated using
a generally accepted
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method of matching interest swap contracts to declining principal balances, (ii)
the floating rate index of such Hedging Contract generally matches the index
used to determine the floating rates of interest on the corresponding
indebtedness to be hedged by such Hedging Contract, and (iii) each such Hedging
Contract is with a counterparty or has a guarantor of the obligation of the
counterparty which (unless such counterparty is a Lender or an Affiliate of a
Lender) at the time such Hedging Contract is made has long-term unsecured and
unenhanced debt obligations rated AA or Aa2 (or their equivalents) or better or
is an investment-grade industry participant or otherwise acceptable to Required
Lenders. As used herein, "Acceptable Sum" shall mean, as of any date of
determination, the lesser of (i) $30,000,000 and (ii) fifty percent of the
average amount of the unpaid Loans outstanding during the prior month. ---
SECTION 5.19. Compliance with Agreements. Perform all material obligations
it is required to perform under the terms of each indenture, mortgage, deed of
trust, security agreement, lease, franchise, agreement, contract, or other
instrument or obligation to which it is a party or by which any of its
properties is bound.
ARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect, or the principal of or interest on any Loan or
Note, any Commitment Fee or any other fee, expense or amount payable hereunder
or in connection with any of the Credit Transactions shall be unpaid, unless the
Required Lenders shall otherwise consent in writing, it will not and will not
cause or permit any of its Subsidiaries and, in the case of Section 6.14 hereof,
any ERISA Affiliate to, either directly or indirectly:
SECTION 6.01. Liens. Incur, create, assume or permit to exist any Lien on
any of its property or assets (including the stock of any direct or indirect
Subsidiary), whether owned at the date hereof or hereafter acquired, or assign
or convey any rights to or security interests in any future revenues, except
("Permitted Liens"):
(a) Liens incurred and pledges and deposits made by the Borrower or any of
its Subsidiaries in the ordinary course of business in connection with workers'
compensation, unemployment insurance, old-age pensions and other social security
benefits;
(b) Liens imposed by law, such as carriers', warehousemen's, mechanics',
materialmen's and vendors' liens and other similar liens, incurred in good faith
in the ordinary course of the business of the Borrower or any of its
Subsidiaries and securing obligations which are not overdue for a period of more
than 30 days or which are being contested in good faith by appropriate
proceedings as to which the Borrower or any of its Subsidiaries, as the case may
be, shall, to the extent required by GAAP, applied on a consistent basis, have
set aside on its books adequate reserves;
(c) Liens securing the payment of taxes, assessments and governmental
charges or levies, that are not delinquent or are being diligently contested in
good faith by appropriate proceedings and as to which reserves have been
established in an amount not less than the aggregate amount secured by such
Liens (including, without limitation, the amount of taxes and assessments being
contested and any interest and penalties payable in respect thereof), and for
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which levy and execution has not issued or continues to be stayed, provided,
that such Liens do not individually or collectively detract materially from the
value of the property of the Person in question or materially impair the use of
that property in the operation of its business;
(d) zoning restrictions, easements, licenses, reservations, provisions,
covenants, conditions, waivers, or restrictions on the use of real property of
the Borrower or any of its Subsidiaries or minor irregularities of title with
respect thereto (and with respect to leasehold interests, mortgages,
obligations, Liens and other encumbrances incurred, created, assumed or
permitted to exist and arising by, through or under a landlord or owner of the
property being leased by the Borrower or its Subsidiaries, but not covering the
leasehold interests or any other property of the Borrower and its Subsidiaries,
with or without consent of the lessee) which do not in the aggregate materially
detract from the value of said property or assets or materially impair the use
thereof in the operation of its business;
(e) Liens (including any Capitalized Lease to the extent the same is an
item of Indebtedness permitted under Section 6.03) originally created to secure
payment of a portion of the purchase price or construction costs, as the case
may be, relating to any real property or equipment or any interest therein, upon
such real property, equipment (including furniture and fixtures) or interest
therein; provided, that (i) the outstanding principal amount of Indebtedness
secured by any such Lien does not exceed one hundred percent (100%) of the
purchase price actually paid by the Borrower or any of its Subsidiaries (or, in
the case of a Capitalized Lease, by the owner) for the real property or
equipment or interest therein which is encumbered by such Lien, and/or the
construction costs actually incurred by the Borrower or any of its Subsidiaries
with respect to the improvements thereto, as the case may be, (ii) the
Indebtedness secured by any such Lien (including, in the case of any Capitalized
Lease, the Capitalized Lease Obligation in respect of such Capitalized Lease) is
permitted under Section 6.03, and (iii) any such Lien does not encumber any
other asset at any time owned by the Borrower or any of its Subsidiaries;
(f) Liens existing on the Closing Date and described on Schedule 6.01
attached hereto, but not the extension, renewal or refunding of the Indebtedness
secured thereby (except as permitted as described on Schedule 6.01);
(g) Liens created in favor of the Administrative Agent which secure the
Obligations, Liens in favor of Travelers which secure the obligations of the
Borrower and its Subsidiaries in respect of the Travelers Documents and Liens
securing Senior Subordinated Indebtedness otherwise permitted hereunder;
(h) constitutional, statutory and contractual Liens of landlords for sums
not yet due and payable; and good-faith pledges or deposits that may not cover
any other assets except cash proceeds of such pledges or deposits made to secure
(i) the Borrower's or any Subsidiary's performance of bids, tenders, contracts
(except for the repayment of borrowed money), or leases, (ii) statutory
obligations, surety, or appeal bonds, or indemnity, performance, or other
similar bonds benefiting the Borrower or any Subsidiary, or (iii) liabilities to
insurance carriers under insurance or self-insurance arrangements and other
obligations of a like nature, so long as, in each case such Liens (x) do not
secure obligations constituting Indebtedness and (y) are incurred in the
ordinary course of business; and
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(i) Liens granted by ACE Funding pursuant to the Loan and Servicing
Agreement.
SECTION 6.02. Sale and Lease-Back Transactions. Except as set forth on
Schedule 6.02, enter into any arrangement, directly or indirectly, with any
Person whereby it shall sell or transfer any property, real or personal, and
used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which it intends to use
for substantially the same purpose or purposes as the property being sold or
transferred, except for any such arrangements that are entered into in the
Borrower's ordinary course of business.
SECTION 6.03. Indebtedness for Borrowed Money and Guarantees.
(a) Incur, create, assume or permit to exist any Indebtedness for borrowed
money (excluding Guarantees) that is secured by Liens other than (i)
Indebtedness secured by Permitted Liens in an amount not to exceed three million
dollars ($3,000,000) per item of Indebtedness and five million dollars
($5,000,000) in the aggregate; (ii) Senior Subordinated Indebtedness in an
amount not to exceed forty million dollars ($40,000,000) in the aggregate, (iii)
Indebtedness existing on the date hereof and listed in Schedule 6.03 hereto;
provided, that, such Indebtedness shall not after the date hereof (A) increase
in amount (except increases subject to limitations in amount in existence on the
date hereof); (B) be secured by Liens not in existence on the date hereof, or
(C) change in regard to seniority in any respect; and (iv) Indebtedness incurred
hereunder (including, without limitation, any drawings under any Letter of
Credit).
(b) Incur, create, assume or permit to exist any Guarantees other than
(without duplication): (i) Guarantees of the Obligations and (ii) Guarantees for
the benefit of Travelers in respect of the Borrower's obligations under the
Money Order Agreement.
(c) Incur, create, assume or permit to exist any unsecured Indebtedness
other than (i) current accounts payable and unsecured current liabilities (not
the result of borrowing) incurred in the ordinary course of business of the
Borrower to vendors, suppliers and Persons providing services, for expenditures
for goods and services normally required by it in the ordinary course of
business and on ordinary trade terms, including (without limitation) obligations
pursuant to the Money Order Agreement, (ii) Indebtedness evidenced by Deferred
Payment Obligations (other than the Indebtedness permitted by clause (iii)
below) in an amount not to exceed four million dollars ($4,000,000) in the
aggregate at any time, and (iii) Indebtedness evidenced by Deferred Payment
Obligations with respect to the Alpha Acquisition in an amount not to exceed
three million dollars ($3,000,000).
(d) Incur, create, assume or permit to exist any Indebtedness under
Hedging Contracts other than Hedging Contracts with a Lender or an Affiliate of
a Lender, in each case in accordance with Section 5.18 hereof.
SECTION 6.04. Equity Interest in Subsidiaries Equity Interests in
Borrower.
(a) Sell, transfer, encumber, pledge or otherwise dispose of any Equity
Interests (including, without limitation, Preferred Stock and any options,
warrants or other rights to acquire any Equity Interests) in any Subsidiary or
permit any of its Subsidiaries to issue any additional Equity Interests other
than to the Borrower or to a Subsidiary of the Borrower that is a
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Guarantor; or otherwise permit any Subsidiary to be other than a direct or
indirect wholly-owned Subsidiary.
(b) Sell or otherwise issue any Equity Interests (including, without
limitation, Preferred Stock and any options, warrants or other rights to acquire
any Equity Interests) in Borrower; provided, however, that Borrower may issue
and or sell additional shares of its common stock, and may grant options,
warrants, and other rights to acquire its common stock, in each case after the
Closing Date only if no Event of Default has occurred and is continuing
hereunder or would otherwise occur as a result of any such issuance and sale.
SECTION 6.05. 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 Administrative Agent with written notice
at least ten (10) Business Days prior to such merger, (ii) all Liens in favor of
the Administrative Agent 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 also Permitted Liens, and (iii) in no event shall
ACE Funding merge into Borrower or any Subsidiary of Borrower, (b) acquire all
or substantially all the Equity Interests or other ownership interests in, any
other Person (except for Acceptable Acquisitions that also comply with Section
5.11), (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 (d) otherwise
sell any of its assets other than assets which are of nominal value or obsolete
or are replaced by assets of equal suitability and value; provided, however,
that (i) the Borrower and its Subsidiaries may sell only fixed assets (i.e.,
furniture, fixtures, and equipment), goodwill, and leasehold interests in
connection with the disposition of stores in the ordinary course of business
(but in no event cash, checks, accounts, receivables or working capital) in an
amount not to exceed $7,500,000 in the aggregate in any Fiscal Year, and (ii)
any Guarantor may sell or lease any of its assets to the Borrower or to another
Guarantor if and only if all Liens on any such assets in favor of the
Administrative Agent continue to be valid, perfected and first priority
subsequent to such sale or lease.
SECTION 6.06. Loans and Advances. Make any loan or advance to any other
Person other than (without duplication):
(a) Advances by Borrower or any Subsidiary to its employees, other than
corporate officers, for salary and other compensatory benefits, travel advances,
advances against commissions and other similar advances in the ordinary course
of business, provided that the amount of such advances does not exceed $200,000
in the aggregate at any time;
(b) Loans and advances to any wholly-owned Subsidiary which is also a
Guarantor;
(c) Loans and advances existing on the date hereof and listed on Schedule
6.06 hereto, but not the increase, extension, renewal or refunding thereof;
(d) Loans and advances to the Borrower's retail financial service
customers in the ordinary course of its business; or
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(e) Loans to ACE Funding by Borrower permitted under Section 6.21.
SECTION 6.07. Net Worth. At any time, permit Net Worth of the Borrower and
its Subsidiaries on a Consolidated basis at any time to be less than
$133,700,000; plus (b) seventy-five percent (75%) of all Net Income earned after
the Closing Date during any completed fiscal quarter, provided, however that
fiscal quarters in which Net Income is a negative amount will be excluded from
the calculation of Net Income earned after the Closing Date, plus (c) an amount
equal to all proceeds of any offering of Equity Interests (net of offering and
professional fees and expenses) by the Borrower or any of its Subsidiaries
occurring after the Closing Date that is permitted hereunder.
SECTION 6.08. EBITDA. At the end of any fiscal quarter, permit the
aggregate EBITDA on a Consolidated basis for the four previous quarters to be
less than eighty-five percent (85%) of the aggregate EBITDA of the Borrower and
its Subsidiaries on a Consolidated basis for the four consecutive fiscal
quarters reported at the prior fiscal quarter end.
SECTION 6.09. Debt to EBITDA Ratio. At the end of any fiscal quarter,
permit the Debt to EBITDA Ratio to be more than (i) 2.75 to 1.00 from the
Closing Date through and including December 31, 2005 and (ii) 2.50 to 1.00 at
any time thereafter. For purposes of this Section 6.09 only, the EBITDA of any
Person acquired by the Borrower or its Subsidiaries pursuant to an Acceptable
Acquisition during any period shall be included in the Debt to EBITDA Ratio on a
pro forma basis for such period (assuming the consummation of such acquisition
and the incurrence or assumption of any Indebtedness in connection therewith
occurred on the first day of such period) if (a) with respect to any such
Acceptable Acquisition of such Person, the consolidated balance sheet of such
acquired Person as at the end of the period preceding the acquisition of such
Person and its consolidated subsidiaries and the related statements of income
and stockholders' equity and of cash flows for the period in respect of which
the Debt to EBITDA Ratio is to be calculated have been reported on, unless such
audit requirement is waived by Administrative Agent, without a qualification
arising out of the scope of the audit by independent certified public
accountants of nationally recognized standing and (b) if any such Acceptable
Acquisition involved the incurrence of Funded Indebtedness, the incurrence of
such Funded Indebtedness was permitted hereunder; provided, however, that no
recalculation of the Debt to EBITDA Ratio pursuant to this sentence shall have
any effect on the Applicable Margin until the first Adjustment Date occurring
after each such recalculation.
SECTION 6.10. Cash Flow Coverage Ratio. At the end of any fiscal quarter,
permit the Cash Flow Coverage Ratio of the Borrower and its Subsidiaries on a
Consolidated basis to be less than 1.25 to 1.00.
SECTION 6.11. Use of Proceeds. Permit the proceeds of any Loan to be used
for any purpose which entails a violation of, or is inconsistent with,
Regulation T, U or X of the Board or Section 3.13 hereof.
SECTION 6.12. ERISA.
(a) Engage in any transaction in connection with which the Borrower or any
ERISA Affiliate could be subject to either a material civil penalty assessed
pursuant to the provisions of
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Section 502 of ERISA or a material tax imposed under the provisions of Section
4975 of the Code.
(b) Terminate any Pension Plan in a "distress termination" under Section
4041 of ERISA, or take any other action which could result in a material
liability of the Borrower or any ERISA Affiliate to the PBGC.
(c) Fail to make payment when due of all amounts which, under the
provisions of any Plan, the Borrower or any ERISA Affiliate is required to pay
as contributions thereto, or, with respect to any Pension Plan, permit to exist
any material "accumulated funding deficiency" (within the meaning of Section 302
of ERISA and Section 412 of the Code), whether or not waived, with respect
thereto.
(d) Adopt an amendment to any Pension Plan requiring the provision of
security under Section 307 of ERISA or Section 401(a)(29) of the Code.
SECTION 6.13. Modifications of Certain Indebtedness; Other Agreements.
Without the prior written consent of the Administrative Agent, amend, modify,
restate, or supplement the Travelers Documents if such amendment, modification,
or restatement could reasonably be expected to result in a Material Adverse
Effect. Neither the Borrower nor any Subsidiary shall amend or modify any other
agreement existing on the date hereof, to which the Borrower or any Subsidiary
is a party, if such amendment or modification would materially and adversely
affect the interests of the Lenders.
SECTION 6.14. Transactions with Affiliates. Except as otherwise
specifically set forth in this Agreement and except for (i) leases negotiated in
connection with Acceptable Acquisitions, (ii) transactions permitted pursuant to
the terms of this Agreement, or (iii) leases entered into in the ordinary course
of establishing or maintaining the Borrower's retail locations, directly or
indirectly purchase, acquire or lease any property from, or sell, transfer or
lease any property to, or enter into any other transaction with, any of its
Related Parties, Affiliates or agents or any relative thereof, except at fair
and reasonable prices and on terms not less favorable to it than that which
would have been obtained in an arm's-length transaction with a Person which is
not a Related Party or an Affiliate.
SECTION 6.15. Other Agreements. Enter into (a) any agreement which
requires it to comply with any financial covenant to the extent that such
financial covenant could reasonably be expected to be more restrictive than any
of the financial covenants contained in this Agreement, unless this Agreement is
amended to include such financial covenant contemporaneously upon the execution
and delivery of such other agreement, or (b) without the prior written consent
of the Required Lenders, any agreement for the acquisition of the stock or
substantially all assets of any other business entity which cannot be terminated
prior to the closing thereof either in the sole discretion of the Borrower or in
exchange for a payment not to exceed $10,000, unless such proposed acquisition
is an Acceptable Acquisition.
SECTION 6.16. Restricted Payments. At any time (a) through any outlay
other than issuance of the Borrower's or a Subsidiary's own stock or cash
payments in lieu of the issuance of fractional shares (i) redeem, retire,
otherwise acquire, or prepay, directly or indirectly, any
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shares of its capital stock, or any other Equity Interest (except for repayments
upon forfeiture of restricted stock issued to issued to officers, directors, and
employees of amounts paid to Borrower by such parties for such restricted
stock); (ii) declare or pay any cash dividend (except for cash dividends paid to
the Borrower or any wholly-owned Subsidiary of Borrower that is a Guarantor or
distributions paid by ACE Funding to the Borrower); or (iii) make any other
distribution of any property or cash to owners of an equity interest in their
capacity as such (except distributions of property or cash to the Borrower or
any Guarantor) or (b) make any payment in respect of Indebtedness that is
permitted under Section 6.03; provided, however, that:
(i) the Borrower may make regularly scheduled payments of principal
and interest on all Indebtedness permitted under Section 6.03 so long as
no Default or Event of Default has occurred, is continuing, or would
result therefrom,
(ii) notwithstanding the foregoing clause (i), the Borrower may make
regular payments in respect of the Third Party Payables in the ordinary
course of business irrespective of the occurrence or continuance of a
Default under clause (a), (b), (c), (d), (g), (h), (i), (j), (k), (l),
(m), (n), (o), or (p) of Article VII hereof (or Event of Default resulting
from such a Default), and
(iii) notwithstanding the foregoing, the Borrower may make payments
not otherwise permitted in clauses (i) and (ii) above in an amount not to
exceed $20,000,000 in the aggregate, so long as no Default or Event of
Default has occurred, is continuing, or would result therefrom.
SECTION 6.17. Limitation on Investments. Make or permit to exist, any
capital contributions to, or make any investment in, or purchase or commit to
purchase any Equity Interest or evidences of indebtedness of or interests in any
Person which is not a Subsidiary ("Investments"), except the following:
(a) Liquid Investments;
(b) Acceptable Acquisitions, so long as no Default or Event of Default has
occurred and is continuing;
(c) trade and customer accounts receivable which are for goods furnished
or services rendered in the ordinary course of business and are payable in
accordance with customary trade terms;
(d) Investments existing on the date hereof and described on Schedule
6.17;
(e) Investments in ACE Funding by Borrower permitted under Section 6.21;
(f) the Alpha Acquisition, so long as no Default or Event of Default has
occurred and is continuing at the time thereof or would result therefrom; and
(g) promissory notes payable to Borrower in an aggregate amount not to
exceed $2,000,000 (including the promissory note set forth on Schedule 6.17) and
issued as consideration for the sale of assets otherwise permitted by Section
6.05(d).
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SECTION 6.18. Change in Business. Engage in any business not of the same
general type as, or reasonably related to, those conducted by the Borrower on
the Closing Date.
SECTION 6.19. Capital Expenditures. Make any Capital Expenditures in
excess of the aggregate amount of (i) $9,750,000 in Fiscal Year 2004; and (ii)
$20,000,000 in Fiscal Year 2005 and thereafter. To the extent that any amount of
permitted Capital Expenditures is not used during any Fiscal Year, then up to
$2,000,000 of such unexpended amount may be carried forward and expended during
the next Fiscal Year; provided, however, that (a) no amount of permitted Capital
Expenditures may be carried forward for more than one Fiscal Year and (b) during
any Fiscal Year in which such unexpended amounts have been carried forward, all
Capital Expenditures shall be deemed to apply first to the amount carried
forward and then to the amount of Capital Expenditures permitted during such
Fiscal Year.
SECTION 6.20. Deposit Accounts and Armored Couriers. Borrower shall not,
at any time after the Closing Date, permit (i) more than 5% of the aggregate
amount of Borrower's Cash Holdings and each Subsidiary's Cash Holdings held in
deposit accounts to be held in Deposit Accounts maintained by financial
institutions with which there is no Letter Agreement and (ii) more than 5% of
the aggregate dollar amount of Borrower's Cash Holdings and instruments and each
Subsidiary's Cash Holdings and instruments to be transported by armored couriers
with which there is no Letter Agreement.
SECTION 6.21. ACE Funding. Notwithstanding anything to the contrary
contained in this Agreement, (i) ACE Funding shall not incur or be liable in
respect of any Indebtedness other than Unrestricted Indebtedness in favor of
Autobahn Funding Company LLC ("ACE Funding Lender"), and such Unrestricted
Indebtedness may be secured by Liens on any or all of ACE Funding's assets or
properties, (ii) ACE Funding shall not be a Borrower under this Agreement and
shall not obtain the benefit of the Revolving Credit Commitment or the Seasonal
Revolving Credit Commitment (provided, however, that the Borrower shall be
permitted to (a) make an equity investment in ACE Funding not to exceed
$1,000,000 and (b) loan to ACE Funding up to the lesser of (x) $3,000,000 or (y)
one percent (1%) of the total aggregate financial commitment of the ACE Funding
Lender to ACE Funding, during the Usage Period for purposes of allowing ACE
Funding to (1) satisfy its minimum funding requirements under one or more
reserve accounts to be established by ACE Funding in favor of the ACE Funding
Lender and (2) provide cash to its self-service check cashing machines in
various H&R Block business locations (hereinafter referred to as "SSMs")), (iii)
ACE Funding shall not be required to become a Guarantor hereunder, (iv) neither
Borrower nor ACE Funding shall allow ACE Funding Lender to have or obtain a Lien
on any assets or properties of the Borrower or any of its other Subsidiaries,
(v) except as provided in this Section 6.21, neither Borrower nor any of its
other Subsidiaries will engage in any transaction (excluding transactions
contemplated by the Loan and Servicing Agreement) merger or consolidation with
ACE Funding or provide any credit support for any Unrestricted Indebtedness
which ACE Funding is permitted to incur hereunder, (vi) ACE Funding shall not
own any Equity Interest in, or Indebtedness of, the Borrower or any of its other
Subsidiaries, (vii) neither Borrower nor any of its other Subsidiaries will
sell, lease, transfer or otherwise assign any of its assets or properties to, or
acquire, for any amount of consideration, any assets or properties of, or enter
into any contract or agreement with ACE Funding (provided, however, that the
Borrower shall be permitted to lease its SSMs to ACE Funding) and (viii) except
as specifically permitted under clause (ii) above, neither Borrower nor
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any of its other Subsidiaries will make any loans or advances to, or make any
equity investments in, ACE Funding (other than the minimum equity investment, if
any, required to form ACE Funding under its jurisdiction of organization);
provided, however, that at any time ACE Funding or Borrower fails to comply with
this Section 6.21, ACE Funding shall be immediately required to execute and
deliver Credit Documents of the type required of newly created Subsidiaries of
Borrower under Section 5.11.
SECTION 6.22. Restrictive Agreements. Except as provided in the Loan and
Servicing Agreement, create any restriction of any kind on the ability of any
Subsidiary (including but not limited to ACE Funding) to: (i) pay dividends or
make any other distributions to the Borrower or any Subsidiary of the Borrower,
(ii) pay any Indebtedness owed to the Borrower or any Subsidiary of the
Borrower, (iii) make loans or advances to the Borrower or any Subsidiary of the
Borrower, (iv) transfer any of its properties or assets to the Borrower or any
Subsidiary of the Borrower, or (v) ▇▇▇▇▇ ▇ ▇▇▇▇ on any of its properties or
assets.
SECTION 6.23. Miscellaneous.
(a) Neither the Borrower nor any of its Subsidiaries shall change its
Fiscal Year from ending on June 30 or method of accounting (other than
immaterial changes in methods), except as required by GAAP.
(b) Neither the Borrower nor any of its Subsidiaries shall relocate its
principal executive offices or other facilities or its jurisdiction of
incorporation, organization or formation, or establish new business locations or
store any inventory or other assets at a location not identified to
Administrative Agent on or before the date hereof, without providing not less
than thirty (30) days advance written notice to Administrative Agent.
(c) Neither the Borrower nor any of its Subsidiaries shall change its
corporate name or establish new or additional trade names without providing less
than 30 days advance written notice to Administrative Agent.
(d) Neither the Borrower nor any of its Subsidiaries will request any
extension of credit hereunder which causes (after giving effect to such credit
extension) the aggregate principal amount of all Loans outstanding, plus the
amount of the LC Exposure, to exceed the amount of the Borrowing Base on the
date of such request.
ARTICLE VII. EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue
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unremedied for a period of two (2) Business Days after written notice thereof
from Administrative Agent;
(c) any representation or warranty made or deemed made by or on behalf of
the Borrower or any Subsidiary in or in connection with this Agreement or any
other Credit Document or any amendment or modification hereof or thereof or
waiver hereunder or thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this
Agreement or any other Credit Document or any amendment or modification hereof
or thereof or waiver hereunder or thereunder, shall prove to have been incorrect
in any material respect when made or deemed made;
(d) (i) default shall be made in the due observance or performance of any
covenant, condition or agreement to be observed or performed on the part of the
Borrower or any of its Subsidiaries pursuant to Sections 5.06, 5.08, 5.11 or
5.13 or Articles II, VI or IX of this Agreement, or (ii) default shall be made
in the due observance or performance of any covenant, condition or agreement to
be observed or performed on the part of Borrower or any of its Subsidiaries
pursuant to Sections 5.01, 5.02, 5.03 or 5.05 of this Agreement and such default
shall continue unremedied for five (5) or more consecutive Business Days after
the earlier of (x) the date notice thereof shall have been given to the Borrower
by any Lender, or (y) the date on which such failure becomes known to any
Responsible Officer of the Borrower; or (iii) default shall be made in the due
observance or performance of any other covenant, condition or agreement to be
observed or performed on the part of the Borrower or any of its Subsidiaries
pursuant to this Agreement or any other Credit Document and not otherwise
covered by this Article VII and such default shall continue unremedied for
thirty (30) or more consecutive Business Days after the earlier of (x) the date
notice thereof shall have been given to the Borrower or such Subsidiary by any
Lender, or (y) the date on which such failure becomes known to any Responsible
Officer of the Borrower or such Subsidiary; provided, however, the grace periods
provided for in this paragraph (d) shall be void and of no effect unless the
Borrower shall, to the extent the Borrower has actual knowledge thereof, provide
prompt notice to the Administrative Agent (in writing) of (A) the occurrence or
expected occurrence of such Default, with a certification to the Administrative
Agent of the Borrower's good faith expectation that such Default shall be cured
by the Borrower before the end of the grace period; and (B) the occurrence of
the Borrower's cure of the Default before the end of the grace period. During
the grace period, a Default shall be deemed to have occurred and be continuing
until actually cured by the Borrower. If any such Default is not cured before
the end of the grace period, the Administrative Agent shall have all of the
rights described in this Article VII and each of the other Credit Documents
without any restriction imposed by this paragraph (d) whatsoever;
(e) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (f) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) take any action for the purpose of effecting any of
the
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foregoing, or (vii) shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(f) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 45
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(g) the aggregate principal amount of all Loans outstanding, plus the
amount of the LC Exposure exceeds the Borrowing Base more than three (3) times
during any consecutive twelve (12) month period;
(h) default shall be made with respect to any Indebtedness or under any
Capitalized Lease Obligation of the Borrower or any Subsidiary of the Borrower
in an amount exceeding one million dollars ($1,000,000) if the effect of any
such default shall be to accelerate, or to permit the holder or obligee of any
such Indebtedness or under such Capitalized Lease Obligations (or any trustee on
behalf of such holder or obligee) at its option to accelerate the maturity of
such Indebtedness or such Capitalized Lease Obligation, or any other event
occurs, the effect of which default or other event is to cause such Indebtedness
or such Capitalized Lease Obligation in an amount exceeding one million dollars
($1,000,000) to be demanded or to become due or to be repurchased, required to
be prepaid, defeased or redeemed (automatically or otherwise), or require an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made by
the Borrower or any Subsidiary of the Borrower prior to its stated maturity;
provided, however, an Event of Default for purposes of this clause (h) shall not
be deemed to exist due to the acceleration of the maturity of any obligation to
a Lender or an affiliate (within the meaning of Regulation U) of a Lender solely
by reason of a default in the performance of a term or condition in any
agreement or instrument under or by which such obligation is created, evidenced
or secured, which term or condition restricts the right of the Borrower or any
other Person to sell, pledge or otherwise dispose of any margin stock (within
the meaning of Regulation U) held by the Borrower or any such other Person;
(i) a Reportable Event (other than a Reportable Event with respect to
which the thirty (30) day notice requirement under Section 4043 of ERISA has
been waived) shall have occurred with respect to a Pension Plan, (ii) the
Borrower, any ERISA Affiliate, or an administrator of any Plan files a notice of
intent to terminate such a Plan in a "distress termination" under the provisions
of Section 4041 of ERISA, (iii) the receipt of notice by the Borrower, any ERISA
Affiliate, or an administrator of a Pension Plan that the PBGC has instituted
proceedings to terminate (or appoint a trustee to administer) such a Pension
Plan or Multiemployer Plan, (iv) any other event or condition exists which
might, in the reasonable opinion of the Administrative Agent, constitutes
grounds under the provisions of Section 4042 of ERISA for the termination of (or
the appointment of a trustee to administer) any Pension Plan or Multiemployer
Plan by the PBGC, (v) a Pension Plan fails to maintain the minimum funding
standard required by Section 412 of the Code for any plan year or a waiver of
such standard is
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sought or granted under the provisions of Section 412(d) of the Code, (vi) the
Borrower or any ERISA Affiliate has incurred, or is likely to incur, a liability
under the provisions of Section 4062, 4063, 4064 or 4201 of ERISA, (vii) the
Borrower or any ERISA Affiliate fails to pay the full amount of an installment
required under Section 412(m) of the Code, and in each case in clauses (i)
through (vii) of this paragraph (i), such event or condition, together with all
other such events or conditions, if any, could subject the Borrower or any ERISA
Affiliate to any taxes, penalties or other liabilities which could have a
material adverse effect on the financial condition of the Borrower and any ERISA
Affiliate taken as a whole;
(j) the Borrower or any ERISA Affiliate (i) shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred any material withdrawal
liability to such Multiemployer Plan, and (ii) does not have reasonable grounds
for contesting such withdrawal liability and is not in fact contesting such
withdrawal liability in a timely and appropriate manner;
(k) any final judgment or judgments for the payment of money shall be
rendered by a court or other tribunal against the Borrower or any Subsidiary of
the Borrower (but only to the extent that the same (i) is not fully covered by
insurance or (ii) if fully covered by insurance, the carrier of such insurance
has denied liability under such insurance) which when taken together with all
other such judgments which remain outstanding and unpaid exceed(s) one million
dollars ($1,000,000) (excluding the amount of commercially reasonable
deductibles under insurance) and (x) any such judgment or judgments shall remain
undischarged or unstayed for more than thirty (30) days, whether consecutive or
not, or (y) any judgment creditor shall legally commence actions to collect on
or enforce such judgment; or after the Closing Date, the Borrower and/or its
Subsidiaries (other than ACE Funding) shall settle any lawsuit or cause of
action filed against it or them requiring the Borrower and/or its Subsidiaries
(other than ACE Funding) to pay an amount (net of insurance proceeds) (i) equal
to or greater than $5,000,000 with respect to any single lawsuit or cause of
action or (ii) equal to or greater than $10,000,000 with respect to all lawsuits
or causes of action in the aggregate;
(l) this Agreement or any other Credit Document shall for any reason cease
to be, or shall be asserted by the Borrower or any Guarantor not to be, a legal,
valid and binding obligation of such Person, enforceable in accordance with its
terms;
(m) any Guarantor revokes, terminates or fails to perform any of the
terms, conditions, covenants or provisions of any Guaranty Agreement, Security
Document, endorsement or other agreement of such Person to the Lenders;
(n) any Change in Control;
(o) any event or change in circumstances occurs which could reasonably be
expected to result in a Material Adverse Effect; or
(p) a Travelers Event of Default;
then, and in every such event (other than an event with respect to the Borrower
described in clause (e) or (f) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the
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Borrower, take either or all of the following actions, at the same or different
times: (i) terminate the Total Revolving Credit Commitments and/or the Total
Seasonal Revolving Credit Commitments, and thereupon the Total Revolving Credit
Commitments and/or the Total Seasonal Revolving Credit Commitments, as
applicable, shall terminate immediately, and terminate the obligations of
Issuing Lender to issue or cause to be issued Letters of Credit, (ii) demand
that the Borrower provide to Issuing Lender, and the Borrower upon such demand
agrees to provide, cash collateral in an amount equal to the LC Exposure of the
Borrower then existing, such cash collateral to be deposited in a cash
collateral account to be held by Administrative Agent for the benefit of Issuing
Lender, and (iii) declare the Loans then outstanding, and all reimbursement
obligations in respect of drawings under Letters of Credit then outstanding, to
be due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans and reimbursement obligations
in respect of drawings under Letters of Credit then outstanding so declared to
be due and payable, together with accrued interest thereon and all fees and
other Obligations, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (e) or (f) of this Article, the Total Revolving
Credit Commitments and the Total Seasonal Revolving Credit Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other Obligations, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII. ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, the Security Documents, and the
other Credit Documents together with such actions and powers as are reasonably
incidental thereto. Each Lender hereby authorizes Administrative Agent to
execute and deliver the Intercreditor Agreement on behalf of such Lender.
The Lenders and the Issuing Bank irrevocably authorize the Administrative
Agent, at its option and in its discretion, (a) to release any Lien on any
property granted to or held by the Administrative Agent under any Credit
Document (i) upon termination of the Total Revolving Commitments and Total
Seasonal Revolving Credit Commitment and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) that is sold or to be sold as part of
or in connection with any sale permitted hereunder or under any other Credit
Document, or (iii) subject to Section 9.02, if approved, authorized or ratified
in writing by the Required Lenders; and (b) 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 Article VIII.
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The bank 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 such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Credit Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent 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 Credit Documents that the Administrative Agent is required to
exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders and/or other Persons as shall be necessary hereunder),
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as 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 with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders and/or
other Persons as shall be necessary hereunder) or 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 written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and 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, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document,
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent, or (vi) the existence, genuineness, or
value of any Collateral or the validity, effectiveness, perfection, priority or
enforceability of Liens in or on any of the Collateral.
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 believed by it to be genuine
and to have been signed or sent 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 be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), 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.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The
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Administrative Agent and any such sub-agent may perform any and all its duties
and exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs 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.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Administrative Agent, the Lenders, the Issuing Bank and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative
Agent. Upon the acceptance of its appointment as Administrative Agent hereunder
by a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03(b) 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 it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender 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 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 related agreement or any
document furnished hereunder or thereunder.
EACH LENDER SEVERALLY AGREES TO INDEMNIFY (TO THE EXTENT NOT REIMBURSED BY
THE BORROWER UNDER SECTION 9.03(b)) EACH OF THE ADMINISTRATIVE AGENT AND EACH
RELATED PARTY OF THE ADMINISTRATIVE AGENT (EACH SUCH PERSON BEING CALLED IN THIS
PARAGRAPH AN "INDEMNITEE") AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY
AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE
FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE, INCURRED BY
OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN CONNECTION WITH, OR AS A
RESULT OF (COLLECTIVELY BEING CALLED IN THIS PARAGRAPH, THE "COSTS"): (i) THE
EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER CREDIT 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 LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL
BY THE ISSUING BANK TO HONOR A
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DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN
CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER
OF CREDIT), (iii) THE COLLATERAL OR THE EXERCISE OF REMEDIES IN RESPECT OF THE
COLLATERAL, (iv) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS
MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY OF
ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE
BORROWER OR ANY OF ITS SUBSIDIARIES, OR (v) ANY ACTUAL OR PROSPECTIVE CLAIM,
LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING,
WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER
ANY INDEMNITEE IS A PARTY THERETO, IN EACH CASE IN ACCORDANCE WITH SUCH LENDER'S
APPLICABLE PERCENTAGE (DETERMINED AS OF THE TIME THAT THE APPLICABLE
UNREIMBURSED EXPENSE OR INDEMNITY PAYMENT IS SOUGHT) OF SUCH COSTS. THE
FOREGOING IS INTENDED TO INDEMNIFY AND HOLD HARMLESS EACH INDEMNITEE TO THE
EXTENT THAT SUCH COSTS RESULTED FROM THE NEGLIGENCE OR ALLEGED NEGLIGENCE OF
SUCH INDEMNITEE (WHETHER SOLE, COMPARATIVE, CONTRIBUTORY, OR OTHERWISE);
PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO
THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES
RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Except as otherwise expressly provided, notices,
consents and other communications provided for herein shall be in writing and
shall be delivered or mailed (or in the case of facsimile communication,
delivered by graphic scanning, telecopier or other telecommunications equipment,
with receipt confirmed) addressed to (or such other address as shall be
designated by such party in a written notice to the other parties):
if to the Borrower: ACE Cash Express, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
if to the Administrative
Agent: ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
if to any Lender: At the address set forth below its name
in Schedule 2.02(a) hereto.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Revolving Credit Commitment or Seasonal
Revolving Credit Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of the Revolving Credit Commitment or Seasonal Revolving Credit
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.13 in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)
change the definition of "Seasonal Revolving Credit Availability Period", (vi)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, (vii) waive any of the conditions
specified in Article IV, (viii) release Borrower from its obligations to pay any
Lender's Loan or any Guarantor from its guaranty of such payment, or (ix)
release any Collateral (other than releases of Collateral that are expressly
permitted in connection with a permitted asset sale pursuant to Section 6.05 or
under
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any Credit Document) without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent or the Issuing Bank hereunder
without the prior written consent of the Administrative Agent or the Issuing
Bank, as the case may be. Notwithstanding anything to the contrary contained
herein, (i) an amendment, waiver or modification of a Hedging Contract shall
only require the consent of the parties thereto and (ii) a waiver or
modification in respect of Section 6.20 hereof shall not be deemed to be a
release of Collateral under this Section 9.02(b).
SECTION 9.03. Expenses; Indemnity, Damage Waiver. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by each of the
Administrative Agent and each of its respective 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 and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with this Agreement, including its rights under this
Section, or 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 or Letters of
Credit.
(b) THE BORROWER SHALL INDEMNIFY EACH OF THE ADMINISTRATIVE AGENT, THE
ISSUING BANK AND EACH LENDER, AND EACH RELATED PARTY OF ANY OF THE FOREGOING
PERSONS (EACH SUCH PERSON BEING CALLED IN THIS SECTION 9.03(b) AN "INDEMNITEE")
AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS,
DAMAGES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE FEES, CHARGES AND
DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE, INCURRED BY OR ASSERTED AGAINST
ANY INDEMNITEE ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF EACH OF:
(i) THE EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER CREDIT 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 LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREFROM (INCLUDING ANY
REFUSAL BY THE ISSUING BANK TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF
CREDIT IF THE DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY
COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT), (iii) THE COLLATERAL OR THE
EXERCISE OF REMEDIES IN RESPECT OF THE COLLATERAL, (iv) ANY ACTUAL OR ALLEGED
PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR
OPERATED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL
LIABILITY RELATED IN ANY WAY TO THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR (v)
ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING
RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO. THE
FOREGOING IS INTENDED TO INDEMNIFY AND HOLD HARMLESS EACH INDEMNITEE TO THE
EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES, OR RELATED EXPENSES
RESULTED FROM THE NEGLIGENCE OR ALLEGED NEGLIGENCE OF SUCH INDEMNITEE
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(WHETHER SOLE, COMPARATIVE, CONTRIBUTORY, OR OTHERWISE); PROVIDED THAT SUCH
INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH
LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES RESULTED FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE.
(c) To the extent permitted by applicable law, the Borrower shall not
assert, and 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 or any agreement or instrument contemplated hereby, any Loan
or Letter of Credit or the use of the proceeds thereof.
(d) All amounts due under this Section shall be payable not later than 5
Business Days after written demand therefor.
SECTION 9.02. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section. 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
(including any Affiliate of the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Total
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is continuing,
any other assignee; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of (x) any
Revolving Credit Commitment to an assignee that is a Lender with a
Revolving Credit Commitment immediately prior to giving effect to such
assignment or (y) any Seasonal Revolving Credit Commitment to an assignee
that is a Lender with a Seasonal Revolving Credit Commitment immediately
prior to giving effect to such assignment
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the
assigning Lender's
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Revolving Credit Commitment, Seasonal Revolving Credit Commitment, or
Loans the amount of the Revolving Credit Commitment, Seasonal Revolving
Credit Commitment or 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) shall
not be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, provided that no such consent of
the Borrower shall be required if an Event of Default has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of either the Revolving Credit
Commitments and Revolving Credit Loans or the Seasonal Revolving Credit
Commitment and Seasonal Revolving Credit Loans;
(C) 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
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
For the purposes of this Section 9.04(b), the term "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and 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.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto 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
2.10, 2.11, 2.12, and 9.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
Section 9.04 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 paragraph (c) of this Section.
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(iv) The Administrative Agent, acting for this purpose as an
Administrative Agent of the Borrower, shall maintain at one of its offices
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
Total Commitment of, and principal amount of the Loans and LC
Disbursements 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 Borrower, -------- the Administrative Agent, the Issuing Bank 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 the Borrower, the Issuing Bank and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
administrative questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Assumption and record the information contained
therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Total Commitment and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing
Bank 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, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of
this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.10, 2.11, 2.12, to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 9.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.10 or 2.12 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 the Borrower's prior written consent. A Participant that would
be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of
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Section 2.12 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.12(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Total Commitments have not
expired or terminated. The provisions of Sections 2.10, 2.11, 2.12, and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the Total
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent 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
Sections 4.01 and 4.02, 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 which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. 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.
SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
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SECTION 9.08. Right of Set-off. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law
(except as provided in any Lender Control Agreement), to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other obligations at any time owing by such Lender or
Affiliate to or for the credit or the account of the Borrower against any of and
all the Obligations held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
Obligations may be unmatured; provided, however, that each Lender agrees that
all proceeds of each such set off or application shall be promptly remitted to
the Administrative Agent and applied to the payment of the Obligations as set
forth in the Intercreditor Agreement. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by
the law of the State of Texas; provided, that the Administrative Agent, and each
Lender shall retain all rights arising under federal law.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the courts of the
State of Texas situated in Dallas County or of the United States District Court
for the Northern District of Texas, Dallas Division, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Texas State or, to the extent permitted by 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 shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement 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 law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY 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
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INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, ADMINISTRATIVE AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 1.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and Administrative Agent,
including accountants, legal counsel and other advisors (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, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(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 the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower; provided, however, that with respect to disclosures of Information
pursuant to clauses (b) and (c) above, unless prohibited by law or applicable
court order, each Lender, Issuing Bank, and the Administrative Agent shall make
a reasonable attempt to notify the Borrower of any request by any governmental
agency or representative thereof for disclosure of such Information after
receipt of such request, and, if reasonable, practicable, and permissible,
before such disclosure (it being understood that Borrower and its Subsidiaries
may rely upon this Section 9.12 in order to comply with Regulation FD
promulgated by the Securities Exchange Commission as of the date hereof
("Regulation FD")). For the purposes of this Section, "Information" means all
information (including material non-public information within the meaning of
Regulation FD) received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied
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with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information. Notwithstanding anything to the
contrary, "Information" shall not include, and the Administrative Agent, the
Issuing Bank and each Lender may disclose without limitation of any kind, any
information with respect to the "tax treatment" and "tax structure" (in each
case, within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the Administrative Agent,
the Issuing Bank or such Lender relating to such tax treatment and tax
structure; provided that with respect to any document or similar item that in
either case contains information concerning the tax treatment or tax structure
of the transaction as well as other information, this sentence shall only apply
to such portions of the document or similar item that relate to the tax
treatment or tax structure of the Loans, Letters of Credit and transactions
contemplated hereby.
SECTION 9.13. Interest. (a) It is the intention of the parties hereto that
the Administrative Agent and each Lender shall conform strictly to usury laws
applicable to it, if any. Accordingly, if the transactions with the
Administrative Agent or any Lender contemplated hereby would be usurious under
applicable law, then, in that event, notwithstanding anything to the contrary in
this Agreement, the Notes, or any other Credit Document, it is agreed as
follows: (i) the aggregate of all consideration which constitutes interest under
applicable law that is contracted for, taken, reserved, charged or received by
the Administrative Agent or such Lender, as the case may be, under this
Agreement, the Notes, or under any other Credit Document shall under no
circumstances exceed the maximum amount allowed by such applicable law and any
excess shall be canceled automatically and, if theretofore paid, shall at the
option of the Administrative Agent or such Lender be credited by the
Administrative Agent or such Lender on the principal amount of the obligations
owed to the Administrative Agent or such Lender by the Borrower or refunded by
the Administrative Agent or such Lender to the Borrower, and (ii) in the event
that the maturity of any Loan or any Note or other Obligation payable to the
Administrative Agent or such Lender is accelerated or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest under law applicable to the Administrative Agent or such Lender may
never include more than the maximum amount allowed by such applicable law and
excess interest, if any, to the Administrative Agent or such Lender provided for
in this Agreement or otherwise shall be canceled automatically as of the date of
such acceleration or prepayment and, if theretofore paid, shall, at the option
of the Administrative Agent or such Lender be credited by the Administrative
Agent or such Lender on the principal amount of the obligations owed to the
Administrative Agent or such Lender by the Borrower or refunded by the
Administrative Agent or such Lender to the Borrower. It is further agreed that
without limitation of the foregoing, that all calculations of the rate of
interest contracted for, charged or received by any Lender in respect of the
Loans made by it or under the Notes held by it, or under this Agreement, shall
be made, to the extent permitted by usury laws applicable to such Lender (now or
hereafter enacted) by amortizing, prorating and spreading in equal parts during
the period of the full stated term of said Loans or Notes all interest at any
time contracted for, taken, charged, reserved or received by such Lender in
connection therewith.
(b) In the event that at any time the interest rate applicable to any Loan
made by any Lender would exceed the maximum non-usurious rate allowed by
applicable law, the rate of interest to accrue on the Loans by such Lender shall
be limited to the maximum non-usurious
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rate allowed by applicable law, but shall accrue, to the extent permitted by
law, on the principal amount of the Loans made by such Lender from time to time
outstanding, if any, at the maximum nonusurious rate allowed by applicable law
until the total amount of interest accrued on the Loans made by such Lender
equals the amount of interest which would have accrued if the interest rates
applicable to the Loans pursuant to Article II had at all times been in effect.
In the event that upon the final payment of the Loans made by any Lender and
termination of the Total Commitment of such Lender, the total amount of interest
paid to such Lender hereunder and under the Notes is less than the total amount
of interest which would have accrued if the interest rates applicable to such
Loans pursuant to Article II had at all times been in effect, then the Borrower
agrees to pay to such Lender, to the extent permitted by law, an amount equal to
the excess of (i) the lesser of (x) the amount of interest which would have
accrued on such Loans if the maximum nonusurious rate allowed by applicable law
had at all times been in effect or (y) the amount of interest rates applicable
to such Loans pursuant to Article II had at all times been in effect over (ii)
the amount of interest otherwise accrued on such Loans in accordance with this
Agreement.
SECTION 9.14. 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 Borrower 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 the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Act.
SECTION 9.15. Nonapplicability of Chapter 346 et seq. The Borrower, the
Administrative Agent and the Lenders hereby agree that the provisions of Chapter
346 of the Texas Finance Code, which replaced Tex. Rev. Civ. Stat. ▇▇▇. art.
5069-15.01 et seq. (▇▇▇▇▇▇ 1987) (regulating certain revolving credit loans and
revolving tri-party accounts), shall not apply to this Agreement or any of the
other Credit Documents.
SECTION 9.16. Waiver of Consumer Rights. THE BORROWER HEREBY WAIVES ITS
RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION
17.41 ET. SEQ. BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL
RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN
SELECTION, THE BORROWER VOLUNTARILY CONSENTS TO THIS WAIVER. THE BORROWER
EXPRESSLY WARRANTS AND REPRESENTS THAT IT (a) IS NOT IN A SIGNIFICANTLY
DISPARATE BARGAINING POSITION RELATIVE TO THE ADMINISTRATIVE AGENT AND THE
LENDERS, AND (b) HAS BEEN REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
SECTION 9.17. Entire Agreement. PURSUANT TO SECTION 26.02 OF THE TEXAS
BUSINESS AND COMMERCE CODE, A LOAN AGREEMENT IN WHICH THE AMOUNT INVOLVED IN THE
LOAN AGREEMENT EXCEEDS $50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE LOAN
AGREEMENT IS IN WRITING AND SIGNED BY THE PARTY TO BE BOUND OR THAT PARTY'S
AUTHORIZED REPRESENTATIVE. THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN
AGREEMENT SUBJECT TO
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THE PRECEDING PARAGRAPH SHALL BE DETERMINED SOLELY FROM THE WRITTEN LOAN
AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES RELATED TO SUCH
LOAN AGREEMENT ARE SUPERSEDED BY AND MERGED INTO THE LOAN AGREEMENT. THIS
WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS, AS DEFINED IN THIS AGREEMENT,
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 9.18. Communications.
(a) The Borrower agrees that the Administrative Agent may make any
material delivered by the Borrower to the Administrative Agent, as well as any
amendments, waivers, consents, and other written information, documents,
instruments and other materials relating to the Borrower, any of its
Subsidiaries, or any other materials or matters relating to this Agreement, the
Notes or any of the transactions contemplated hereby (collectively, the
"Communications") available to the Lenders by posting such notices on an
electronic delivery system (which may be provided by the Administrative Agent,
an Affiliate of the Administrative Agent, or any Person that is not an Affiliate
of the Administrative Agent), such as IntraLinks, or a substantially similar
electronic system (the "Platform"). The Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as available" and (iii)
neither the Administrative Agent nor any of its Affiliates warrants the
accuracy, completeness, timeliness, sufficiency, or sequencing of the
Communications posted on the Platform. The Administrative Agent and its
Affiliates expressly disclaim with respect to the Platform any liability for
errors in transmission, incorrect or incomplete downloading, delays in posting
or delivery, or problems accessing the Communications posted on the Platform and
any liability for any losses, costs, expenses or liabilities that may be
suffered or incurred in connection with the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the
Administrative Agent or any of its Affiliates in connection with the Platform.
(b) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communication has been posted to the
Platform shall for purposes of this Agreement constitute effective delivery to
such Lender of such information, documents or other materials comprising such
Communication. Each Lender agrees (i) to notify, on or before the date such
Lender becomes a party to this Agreement, the Administrative Agent in writing of
such Lender's e-mail address to which a Notice may be sent (and from time to
time thereafter to ensure that the Agent has on record an effective e-mail
address for such Lender) and (ii) that any Notice may be sent to such e-mail
address.
SECTION 9.19. Amendment and Restatement of Existing Credit Agreement. Upon
satisfaction with each of the conditions set forth in Sections 4.01 and 4.02
(except any condition the performance of which has been waived as a condition to
the making of the initial Loans or
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initial issuance of Letters of Credit pursuant to this Agreement), this
Agreement shall be deemed to amend and restate in its entirety the Existing
Credit Agreement, at which time each Lender and Borrower hereby agrees that (i)
the Total Commitment of each Lender shall be as set forth in the definition of
such term in this Agreement, and (ii) the Revolving Credit Loans and Seasonal
Revolving Credit Loans outstanding under the Existing Credit Agreement and all
accrued and unpaid interest thereon, and all accrued and unpaid fees and
expenses under the Existing Credit Agreement, shall be extended, renewed, and
deemed to be outstanding under and governed by this Agreement; provided,
however, that in no event shall the Liens or Guaranty Agreements securing the
Existing Credit Agreement or the obligations thereunder be deemed affected
hereby, it being the intent and agreement of the Borrower that the Guaranty
Agreements and the Liens on the Collateral granted to secure the obligations of
the Borrower and its Subsidiaries in connection with the Existing Credit
Agreement and/or the Guaranty Agreements, shall not be extinguished and shall
remain valid, binding and enforceable securing the obligations under the
Existing Credit Agreement as amended and restated hereby.
SECTION 9.20. Documentation Agent, Syndication Agent and Senior Managing
Agent. The Lenders identified on the facing page of this Agreement as
"Documentation Agent, "Syndication Agent" and "Senior Managing Agent",
respectively, have no right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limitation of the foregoing, the Lenders so identified as "Documentation
Agent," "Syndication Agent" and "Senior Managing Agent", respectively, shall not
have and shall not be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on the
Lenders so identified as "Documentation Agent," "Syndication Agent" and "Senior
Managing Agent", respectively, in taking or not taking action hereunder.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Borrower and the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ACE CASH EXPRESS, INC., as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President &
Chief Financial Officer
Signature Page to First Amended and Restated Credit Agreement
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent,
Issuing Bank and as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
Signature Page to First Amended and Restated Credit Agreement
JPMORGAN CHASE BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to First Amended and Restated Credit Agreement
US BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Signature Page to First Amended and Restated Credit Agreement
BANK OF AMERICA, N.A., as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to First Amended and Restated Credit Agreement
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page to First Amended and Restated Credit Agreement
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ TEMPLE ▇. ▇▇▇▇▇
-----------------------------------
Name: Temple ▇. ▇▇▇▇▇
Title: Vice President
Signature Page to First Amended and Restated Credit Agreement
SOUTHWEST BANK OF TEXAS, N.A., as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to First Amended and Restated Credit Agreement
FIRST AMERICAN BANK, SSB, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Signature Page to First Amended and Restated Credit Agreement
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Signature Page to First Amended and Restated Credit Agreement
NATIONAL CITY BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to First Amended and Restated Credit Agreement
TEXAS CAPITAL BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Executive Vice President
Signature Page to First Amended and Restated Credit Agreement
RZB FINANCE LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Group Vice President
Signature Page to First Amended and Restated Credit Agreement
EXHIBIT A
[FORM OF REVOLVING CREDIT NOTE]
U.S. $____________ Dallas, Texas July __, 2004
FOR VALUE RECEIVED, the undersigned, ACE CASH EXPRESS, INC., a Texas
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
__________________ (the "Lender"), for the account of its Applicable Lending
Office, as defined in that certain First Amended and Restated Credit Agreement,
dated as of the date hereof, by and among the Borrower, the Lender, certain
other lenders from time to time parties thereto (collectively, the "Lenders"),
and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the
Lenders (in such capacity, is herein referred to as the "Administrative Agent")
(as amended, modified, restated or supplemented from time to time, the "Credit
Agreement") (capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Credit Agreement) or any other office designated
by the Lender, the lesser of (i) the principal sum of __________________ DOLLARS
($________________), or (ii) the aggregate unpaid principal amount of all
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 Revolving Credit Loan from the date of such 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 Lender at the Administrative Agent's principal place of
business in New York, New York, in same day funds. Each 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 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 Revolving Credit Loans in accordance with the terms
of this Note.
This Note is one of the 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 Revolving Credit
Loans by the Lender to the Borrower from time to time pursuant to Section 2.01
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
Borrower resulting from each such 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.
1
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 amends, modifies and restates, but does not extinguish or
constitute a novation of, the indebtedness evidenced by that certain Revolving
Credit Note dated October 31, 2003 in the principal amount of $____________
executed by the Borrower and payable to the order of the Lender. All rights,
titles, liens and security interests securing the prior note are preserved,
maintained and carried forward to secure this Note.
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.,
as Borrower
By:________________________
Name:______________________
Title:_____________________
2
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 Made
Borrowing Date Type of Loan Loan Prepaid or Prepaid Balance By
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3
EXHIBIT B
[FORM OF SEASONAL REVOLVING CREDIT NOTE]
U.S. $______________ Dallas, Texas July ____, 2004
FOR VALUE RECEIVED, the undersigned, ACE CASH EXPRESS, INC., a Texas
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender"), for the account of its Applicable
Lending Office (as defined in that certain First Amended and Restated Credit
Agreement, dated as of July __, 2004, by and among the Borrower, the Lender,
certain other lenders from time to time parties thereto (collectively, the
"Lenders"), ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for
the Lenders (in such capacity, is herein referred to as the "Administrative
Agent") (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement") (capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Credit Agreement) or any other office
designated by the Lender, the lesser of (i) the principal sum of
______________________________ DOLLARS ($______________), 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 Lender at the Administrative Agent's principal place of
business in New York, New York, 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 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
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.,
as Borrower
By: ____________________________
Name:___________________________
Title:__________________________
2
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 Made
Borrowing Date Type of Loan Loan Prepaid or Prepaid Balance By
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3
EXHIBIT C
[FORM OF BORROWING BASE REPORT]
Borrowing Base Report for Week Beginning Sunday ___, 200__ and Ending Saturday
___, 200__ (the "Prior Week"):
All capitalized terms used herein, unless otherwise defined herein, shall have
the meanings set forth in that certain First Amended and Restated Credit
Agreement, dated as July 30, 2004, by and among ACE Cash Express, Inc. (the
"Borrower"), ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent,
and the other Lenders party thereto (as amended, supplemented, restated or
extended from time to time, the "Agreement"). Capitalized terms herein and not
otherwise defined shall have the meanings set forth in the Agreement.
Sunday Monday Tuesday Wednesday Thursday Friday Saturday
1. Calculation of the Borrower's Cash Holdings and the Guarantors'
Cash Holdings as of the end of the Prior Week:
a. Aggregate amount of cash of the Borrower and each of its
Subsidiaries that is a Guarantor (the "Guarantors") in
their respective stores as of the end of the Prior
Week. $_____ $_____ $______ $________ $_______ $_____ $_______
b. Aggregate amounts of deposits of the Borrower and the
Guarantors held in depository accounts with financial
institutions. $_____ $_____ $______ $________ $_______ $_____ $_______
c. Aggregate dollar amount of checks which are payable to the
order of, or endorseable to the order of, the Borrower and/or
the Guarantors, other than checks which have been deposited
into any deposit or other account (i.e., the aggregate dollar
amount of all checks in the Borrower's and/or the Guarantor's
stores or in transit with any armored couriers). $_____ $_____ $______ $________ $_______ $_____ $_______
d. Aggregate amount of cash of the Borrower and the Guarantors in
transit with armored couriers. $_____ $_____ $______ $________ $_______ $_____ $_______
e. Total Borrower's Cash Holdings and Guarantors' Cash Holdings
as of the end of the Prior Week (sum of a through d above). $______ $_____ $______ $________ $_______ $_____ $_______
2. Less: Aggregate amount owed by the Borrower and its
Subsidiaries to Travelers Express Company, Inc. under the Money
Order Agreement dated April 16, 1998, as of the end of the Prior Week. $_____ $_____ $______ $________ $_______ $_____ $_______
3. Equals: Amount Available for Borrowing, subject to the terms of
the Agreement, before taking into account the outstanding
principal amount of all Revolving Credit Loans and Seasonal
Revolving Credit Loans. $_____ $_____ $______ $________ $_______ $_____ $_______
4. Less: Aggregate principal amount of a Revolving Credit Loans
and Seasonal Revolving Credit Loans outstanding as of the end of the
Prior Week. $______ $_____ $______ $________ $_______ $_____ $_______
5. Equals: Net Amount Available for Borrowing, subject to the
terms of the Agreement, if positive, or amount due, if negative. $______ $_____ $______ $________ $_______ $_____ $_______
The undersigned hereby certifies that the above information and computations are
true and correct and not misleading as of the date hereof.
ACE CASH EXPRESS, INC.,
as Borrower
By:___________________________________
Name:_________________________________
Title:________________________________
Date:_________________________________
EXHIBIT D
[FORM OF BORROWING NOTICE]
_______, 200_
▇▇▇▇▇ Fargo Bank, National Association,
as Administrative Agent
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, ACE Cash Express, Inc., a Texas corporation (the
"Borrower"), refers to the First Amended and Restated Credit Agreement, dated as
of July ___, 2004 (as amended, supplemented, restated, or otherwise modified,
the "Credit Agreement"; capitalized terms defined therein and not defined herein
being used herein as therein defined), among the undersigned, certain Lenders
parties thereto, and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative
Agent for such Lenders, and hereby gives you notice, irrevocably pursuant to
Section 2.03 of the Credit Agreement, that the undersigned hereby requests a
borrowing under, or the issuance of a Letter of Credit under, the Credit
Agreement, and in that connection sets forth below the information relating to
such a borrowing or such issuance (the "Proposed Borrowing") as required by
Section 2.03 of the Credit Agreement:
(A) Borrowing Date of a Proposed Borrowing
(which is a Business Day) _______________
(B) Aggregate Principal Amount of Proposed Borrowing _______________
(C) Revolving Credit Loan or Seasonal Revolving Credit Loan _______________
(D) Eurodollar Loan, Reference Rate Loan, or ABR Loan _______________
(E) Interest Period (if applicable) _______________
1
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
(a) the representations and warranties contained in Article III of the
Credit Agreement are true and correct in all material respects on and as of the
date of the Proposed Borrowing, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or a Default;
(c) after giving effect to the Proposed Borrowing, the aggregate principal
amount of all Loans outstanding plus the amount of the LC Exposure does not
exceed the lesser of (i) the Total Commitment then in effect or (ii) the amount
of the Borrowing Base on the date of the Proposed Borrowing.
(d) the proceeds of such Proposed Borrowing will be used only to fund
Borrower's working capital requirements in the ordinary course of its business.
Sincerely,
ACE CASH EXPRESS, INC.,
as Borrower
By:________________________
Name:______________________
Title:_____________________
2
EXHIBIT E
[FORM OF OMNIBUS CONFIRMATION AGREEMENT]
[TO BE REVISED FOR EACH SUBSIDIARY WHICH IS A PARTY TO A SECURITY DOCUMENT]
THIS OMNIBUS CONFIRMATION AGREEMENT (this "Agreement") is dated as of July
___, 2004, among ACE CASH EXPRESS, INC., a Texas corporation ("Borrower"), and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders
(as defined below) (in such capacity, is herein referred to as the
"Administrative Agent").
BACKGROUND.
Pursuant to the Credit Agreement dated as of March 31, 2003 (as amended,
supplemented, restated, or otherwise modified to the date of this Agreement, the
"Existing Agreement"), entered into by and among the Borrower, the
Administrative Agent and certain other financial institutions, as lenders (the
"Existing Lenders"), the Existing Lenders provided to Borrower a revolving
credit and seasonal revolving credit facility. Borrower has requested an
amendment and restatement of the Existing Agreement which such amendment and
restatement is in extension and renewal, and not in extinguishment or novation,
of certain of the indebtedness outstanding under the Existing Agreement. The
parties to the Existing Agreement have agreed to do so, subject to the terms and
conditions of the First Amended and Restated Credit Agreement dated as of July
___, 2004 (as may be amended, restated, supplemented, or modified from time to
time, the "Credit Agreement") between Borrower, the Administrative Agent and
other financial institutions party thereto (the "Lenders"). It is a condition
precedent to the effectiveness of the Credit Agreement that Borrower execute and
deliver this Agreement.
AGREEMENT.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and as a condition to the amendment and restatement of the
Existing Agreement, the effectiveness of the Credit Agreement and in order to
induce Lenders to make the Loans under the Credit Agreement, Borrower agrees as
follows:
1. DEFINITIONS. Capitalized terms not otherwise defined in this
Agreement have the meaning specified in the Credit Agreement.
2. RATIFICATION AND AMENDMENT. Borrower (a) agrees, ratifies and confirms
that each of the Credit Documents (as defined in the Existing Agreement),
including but not limited to those documents listed on Schedule 1 hereto, to
which it is a party remains in full force and effect, and after giving effect to
this Agreement and the Credit Agreement, is a valid and binding obligation of
the Borrower, enforceable in accordance with its terms, (b) represents and
warrants that each representation and warranty in each Credit Document is true,
correct and complete as of the date hereof, except those representations and
warranties that speak to a specific date or are modified by the Credit
Agreement, and (c) agree that each reference in each Credit Document to the
Existing Agreement shall mean the Credit Agreement.
3. OBLIGATIONS RESTATEMENT. Neither the Credit Agreement nor any other
Credit Document is intended as or shall be construed as a release or novation of
any "Obligation" or "Obligations" (as defined in the Existing Agreement), all of
which are continued and restated by the Credit Agreement.
4. FURTHER ACTIONS. Borrower shall execute and deliver such further
agreements, documents, instruments, and certificates in form and substance
satisfactory to Administrative Agent, as Administrative Agent may deem necessary
or appropriate in connection with this Agreement, including, without limitation,
proper UCC-1 Financing Statements and amendments thereto.
5. CREDIT DOCUMENT. This Agreement is a Credit Document.
6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument. In making proof of any such agreement, it shall not be necessary to
produce or account for any counterpart other than one signed by the party
against which enforcement is sought.
7. FACSIMILE OR ELECTRONIC COPIES. Delivery of an executed signature page
to this Agreement by facsimile or electronic submission shall be effective as
delivery of a manually executed signature page of this Agreement.
8. GOVERNING LAW: JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of Texas; provided, that the
Administrative Agent, and each Lender shall retain all rights arising
under federal law.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the courts of
the State of Texas situated in Dallas County or of the United States
District Court for the Northern District of Texas, Dallas Division, and
any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Credit Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in such Texas
State or, to the extent permitted by 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 shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Credit Document against
the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any
other Credit Document in any court referred to in paragraph (b) of this
2
Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01 of the Credit
Agreement. Nothing in this Agreement will affect the right of any party to
this Agreement or any other Credit Document to serve process in any other
manner permitted by law.
9. WAIVER OF JURY TRIAL. BORROWER AND ADMINISTRATIVE AGENT FOR ITSELF AND
THE LENDERS HEREBY KNOWINGLY VOLUNTARILY, IRREVOCABLY AND INTENTIONALLY WAIVE,
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR CLAIM ARISING OUT OF OR RELATED TO ANY OF THE CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
10. ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT, TOGETHER WITH THE OTHER
CREDIT DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
3
IN WITNESS WHEREOF, this Agreement is executed as of July ___, 2004.
ACE CASH EXPRESS, INC.,
as Borrower
By:________________________
Name:______________________
Title:_____________________
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent
By:________________________
Name:______________________
Title:_____________________
Signature Page to Omnibus Confirmation Agreement
SCHEDULE 1
The following are the Credit Documents, as amended and restated or otherwise
modified from time to time:
1.
Schedule 1 to Omnibus Confirmation Agreement
EXHIBIT F-1
[FORM OF PERFECTION LETTER (LONG FORM)]
[COMPANY LETTERHEAD]
___________ ___, 2004
SENIOR CONTROL AGREEMENT
[NAME OF FINANCIAL INSTITUTION]
[________________________________________]
[________________________________________]
Attn: [_____________________________]
Re: Each of the accounts described on the attached Account Schedule
(collectively, the "ACCOUNTS" and individually, an "ACCOUNT")
Ladies and Gentlemen:
Reference is made to (i) that certain Intercreditor Agreement dated as of
[___________ ___], 2004 (as may be amended, restated, supplemented or otherwise
modified from time to time, the "INTERCREDITOR AGREEMENT") by and among Ace Cash
Express, Inc., a Texas corporation (the "COMPANY"), ▇▇▇▇▇ Fargo Bank, National
Association, as administrative agent (the "BANK AGENT") for the lenders (the
"LENDERS") from time to time party to the Bank Agreement (as such term is
defined in the Intercreditor Agreement), and Travelers Express Company, Inc.
("TRAVELERS") and (ii) that certain Assignment of Deposit Accounts and Security
Agreement dated as of March 31, 2003, by the Company in favor of the Bank Agent
for the benefit of the Lenders (as such Assignment of Deposit Accounts and
Security Agreement may be amended, restated, supplemented or otherwise modified
from time to time, the "SECURITY AGREEMENT").
Pursuant to the Security Agreement, the Company has granted control of the
Accounts to the Bank Agent and granted to the Bank Agent a first priority
security interest in the Accounts and the Company's monies, funds, checks,
negotiable instruments and any other items or property deposited and/or held in
the Accounts from time to time and all proceeds thereof (all of the foregoing
hereinafter collectively referred to as the "ACCOUNT PROPERTY"), in each case,
to secure certain obligations and indebtedness of the Company owing to the Bank
Agent and the Lenders described therein. The Company hereby notifies you, and
you hereby acknowledge, that the Company has granted a security interest to the
Bank Agent in, and control of, the Accounts and the other Account Property.
WITH RESPECT TO ANY AND ALL INSTRUCTIONS YOU MAY RECEIVE FROM THE BANK
AGENT, THIS LETTER AGREEMENT, EFFECTIVE AS OF THE EFFECTIVE TIME (AS HEREINAFTER
DEFINED), SUPERSEDES ALL PRIOR LETTERS OF INSTRUCTION IN RESPECT OF THE ACCOUNTS
AND THE OTHER ACCOUNT PROPERTY TO WHICH YOU
[NAME OF FINANCIAL INSTITUTION]
Page 2
ARE A PARTY OR WHICH HAVE BEEN DELIVERED TO YOU BY THE COMPANY ("PRIOR
LETTERS").
This letter shall become effective as of 12:01 a.m., Dallas, Texas time
(the "EFFECTIVE TIME"), on the date first written above upon execution of this
letter by each party hereto and delivery of the same to you.
The Company hereby agrees with the Bank Agent, and you hereby acknowledge,
that the Company has no power to withdraw from the Accounts except as expressly
permitted hereunder and that the Bank Agent may, at any time by written notice
to you, terminate or suspend any and all rights of the Company related to the
Accounts.
The Company hereby irrevocably and unconditionally authorizes, instructs
and directs you to comply, and you hereby agree to comply, with all instructions
originated by the Bank Agent with respect to the Accounts or directing
disposition of any or all monies, funds, checks, negotiable instruments or any
other items or properties in the Accounts, in each case without joinder or
further consent by the Company and as promptly after receipt thereof as is
reasonably possible so long as each such instruction is accompanied by a written
certification from Bank Agent stating that Bank Agent is authorized to originate
such instruction under, and in accordance with, the Intercreditor Agreement;
provided, however, that in the event of any insolvency, bankruptcy, liquidation,
reorganization or other similar proceedings or any receivership proceedings in
connection therewith, relative to the Company, the Company hereby irrevocably
and unconditionally authorizes, instructs and directs you to comply, and you
hereby agree to comply, with all instructions originated by the Bank Agent with
respect to the Accounts or directing disposition of any or all monies, funds,
checks, negotiable instruments or any other items or properties in the Accounts,
so long as each such instruction is accompanied by a written certification from
Bank Agent stating that a court of competent jurisdiction has authorized Bank
Agent to originate such instruction and having attached thereto a copy of an
order of such court granting to Bank Agent such authority, in each case without
joinder or further consent by the Company and as promptly after receipt thereof
as is reasonably possible. You are entitled to rely upon and are authorized and
directed to follow all instructions of the Bank Agent and you have no duty of
inquiry as to the authorization or authenticity of any such instructions so long
as they are given by an individual designated by the Bank Agent and accompanied
by either of the foregoing described certifications.
Notwithstanding the foregoing two paragraphs, until you receive notice
from the Bank Agent as set forth above, the Company shall be permitted to make
withdrawals from the Accounts from time to time subject to the conditions set
forth in this paragraph. The Bank Agent and the Company hereby inform you that
the Company will be making daily requests of the Monitoring Agent to permit the
Company to use funds in the Currency Account for the Company's operations. As
used herein, the term "MONITORING AGENT" shall mean the Bank Agent until such
time as the Bank Agent, the Company and the Bank Agent notify you in writing
that a different party is the Monitoring Agent. Subject to obtaining prior
approval from the Monitoring Agent as to the dollar amount
[NAME OF FINANCIAL INSTITUTION]
Page 3
of any day's release of funds, and unless the Bank Agent shall notify you in
writing to the contrary, you shall be entitled to follow the instructions
provided to you by the Company to release funds from the Currency Account daily
to the Company for its use, so long as such funds are designated for delivery to
the Custodial Agent (as defined below) or transferred as permitted herein. You
shall have no obligation or liability hereunder to the Company or the Bank Agent
if you follow such instructions so long as the Bank Agent has not terminated, by
notice to you, the authority of the Company granted by this paragraph. Any such
notice of termination shall be effective only as to transfers to be effected
following your actual receipt of such notice, and in any event, shall be
effective (a) if received before noon on any banking day, as to deliveries or
transfers after the close of the banking day of receipt of such notice, or (b)
if received at or after noon on any banking day, as to deliveries or transfers
after the close of the next succeeding banking day after the banking day of
receipt of such notice. Approvals, notices or instructions given with respect to
this paragraph and the two preceding paragraphs of this letter agreement shall
be given by facsimile at the numbers set forth below, except that as to any
funds deposited into the Currency Account by wire transfer from the Monitoring
Agent, such deposit shall constitute the deemed authorization or prior approval
by the Bank Agent for the Company to use and withdraw the dollar amount of such
funds as permitted by the provisions of this letter agreement, unless the Bank
Agent shall notify you in writing to the contrary.
The Company and the Bank Agent irrevocably approve of the use of wire
transfers, depository transfer checks or automatic clearinghouse electronic
transfers, at the Monitoring Agent's option, for the above-mentioned purposes.
The use of any such wire transfers, checks or electronic transfers are intended
to affirm the right and the interest of the Bank Agent in the Accounts and all
funds and items credited to or deposited therein and not to derogate therefrom.
Your regular monthly maintenance fees, activity fees and service charges
in connection with the Accounts, items returned or charged back to the Accounts,
and the amount of any daylight overdraft by the Company incurred solely by
reason of the transfer of funds to the Monitoring Agent each banking day as
provided above (the "OVERDRAFT AMOUNT"), in each case to the extent chargeable
under the terms of the account agreement(s) governing the Accounts, but no other
fees or charges, may be deducted from the daily deposits to the Accounts. You
are hereby directed to ▇▇▇▇ to the Company directly all other costs, expenses
and other charges associated with the Accounts, and the Company shall pay
directly to you all such costs, expenses and other charges; you agree not to set
off any such other costs, expenses or other charges against the Accounts or the
Account Property. Further, you agree not to charge back any items deposited in
or credited to the Accounts, provisional or otherwise, except as against the
Returned Items Account (as such term is defined in the Account Schedule attached
hereto). The Bank Agent agrees to reimburse you, but solely from the funds of
the trust property, for the amount of items charged back or returned to any
Account or for any Overdraft Amount to the extent that (a) you have credited an
Account for such amount, (b) the Bank Agent has withdrawn such funds from an
Account, (c) sufficient funds are not available for withdrawal by you from an
Account, and (d) payment of such amount has not been received by you from the
Company within ten (10) days (in the case of items charged back or returned to
an Account) or one (1) banking day (in the
[NAME OF FINANCIAL INSTITUTION]
Page 4
case of an Overdraft Amount) following your request to the Company therefor.
Such reimbursement shall be made within ten (10) days (in the case of items
charged back or returned to an Account) or one (1) banking day (in the case of
an Overdraft Amount) following the Bank Agent's receipt of your written request
therefor. Excepting only the limited rights provided above in this paragraph,
you hereby waive and release any and all rights of offset, claims or
counterclaims against, and any and all security interests, banker's liens or
similar rights in or to, the Accounts or the Account Property (whether arising
under law, agreement or otherwise).
You agree to indicate by appropriate entry in your records with respect to
the Accounts or the Account Property the security interest of the Bank Agent
therein.
This notification and the directions and instructions contained herein
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
You agree to deliver copies of all correspondence, notices, bank
statements and other information which you are otherwise obligated or permitted
to send to the Company (by law, agreement or otherwise) to the Bank Agent at the
address specified herein. You are further authorized, and the Company hereby
consents, to deliver any information requested by the Bank Agent related to the
Accounts, with any reasonable expense therefor to be paid by the Company. Any
reasonable additional charge for providing such information shall be billed to
the Company, with a copy to the Bank Agent; if such charge is not paid by the
Company within ten (10) days after its receipt of such invoice, you may set off
such charge against any of the Accounts or the Account Property; if such charge
cannot be paid by set off against the Account or the Account Property, then
unless the Bank Agent agrees to pay such charge, your obligation to provide such
information shall cease. All other notices, communications and information to be
delivered to the Bank Agent shall be delivered to the Bank Agent as set forth in
the first sentence of this paragraph. Such address and the name or names of the
individual or individuals who are entitled to receive notices and copies of
statements sent to the Bank Agent may be changed by written notice from the Bank
Agent. Requests, consents or notices from the Bank Agent with respect to the
Accounts or Account Property will be effective only if obtained in writing from
an individual designated by the Bank Agent for purposes thereof from time to
time. The Bank Agent and the Company acknowledge and agree that you shall not be
bound by any change in address or designation of any responsible party prior to
your actual receipt of written notice thereof.
You hereby waive and release any and all rights of offset, claims or
counterclaims against, and any and all security interests, banker's liens or
similar rights in or to, the Accounts or the Account Property (whether arising
under law, agreement or otherwise) other than the security interests in the
Accounts and the Account Property and your interests therein (if any) which have
been granted to Bank Agent.
These instructions may only be modified in writing by an agreement
executed by you, the Company, the Bank Agent, and the Monitoring Agent;
provided, however, that the attached Account Schedule may be amended by delivery
of a revised schedule from the Company, the
[NAME OF FINANCIAL INSTITUTION]
Page 5
Bank Agent, and the Monitoring Agent to you. All notices, approvals, or
instructions hereunder shall be sent to the following addressee:
If to the Company:
Ace Cash Express, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
If to the Bank Agent:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇▇▇ (▇▇▇▇) ▇. ▇▇▇▇▇
Telephone No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
If to the Monitoring Agent:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇▇▇ (▇▇▇▇) ▇. ▇▇▇▇▇
Telephone No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
If to you: As indicated on the attached Account Schedule
All notices or other communications provided for hereunder shall be in
writing (including by facsimile transmission) and shall be deemed to have been
duly given or made (i) in the case of delivery by hand, when delivered, (ii) in
the case of delivery by mail, three business days (meaning a day other than
Saturday, Sunday or a day on which commercial banks in [CITY, STATE] are
authorized to close) after being deposited in the mails, postage prepaid, or
(iii) in the case of delivery by facsimile transmission, when delivered or
transmitted by facsimile machine, provided that any matter transmitted by
facsimile (a) shall be immediately confirmed by a telephone call to the
recipient at the number specified herein and (b) shall be followed promptly by a
hard copy original thereof.
Notwithstanding anything to the contrary in this letter agreement: (i) you
shall have only the duties and responsibilities with respect to the matters set
forth herein as is expressly set forth in writing herein and shall not be deemed
to be an agent, bailee or fiduciary for any party hereto; (ii) you shall be
fully protected in acting or refraining from acting in good faith without
[NAME OF FINANCIAL INSTITUTION]
Page 6
investigation on any notice, instruction or request purportedly furnished to you
by the Company or Bank Agent in accordance with the terms hereof, in which case
the parties hereto agree that you have no duty to make any further inquiry
whatsoever; (iii) it is hereby acknowledged and agreed that you have no
knowledge of (and are not required to know) the terms and provisions of the
Intercreditor Agreement, the Security Agreement, or any other related
documentation or whether any actions by Bank Agent, the Company or any other
person or entity are permitted thereunder or consistent or inconsistent
therewith; (iv) you shall not be liable to any party hereto or any other person
for any action or failure to act under or in connection with this letter
agreement except to the extent such conduct constitutes your own willful
misconduct or gross negligence (and to the maximum extent permitted by law, you
shall under no circumstances be liable for any incidental, indirect, special,
consequential or punitive damages); and (v) you shall not be liable for losses
or delays caused by force majeure, interruption or malfunction of computer,
transmission or communications facilities, labor difficulties, court order or
decree, the commencement of bankruptcy or other similar proceedings or other
matters beyond your reasonable control.
The Company hereby agrees to indemnify, defend and save you harmless
against any loss, liability or expense (including reasonable fees and
disbursements of counsel who may be your employee) incurred in connection with
this letter agreement or the Accounts (except to the extent due to your willful
misconduct or gross negligence) or any interpleader proceeding relating thereto
or incurred at the Company's direction or instruction. Bank Agent hereby agrees
to indemnify, defend and save you harmless against any loss, liability or
expense (including reasonable fees and disbursements of counsel who may be your
employee) incurred in connection with any actions taken by you under this letter
agreement with respect to the Accounts (except to the extent due to your willful
misconduct or gross negligence). Bank Agent's and the Company's responsibilities
shall survive the termination hereof.
You hereby agree that (i) you are a "bank" within the meaning of Section
9.102 of the Uniform Commercial Code as in effect in the State of Texas (the
"UCC"), (ii) each Account constitutes a "deposit account" within the meaning of
Section 9.102 of the UCC, (iii) this letter agreement shall constitute an
"authenticated record" for purposes of the UCC, and (iv) other than the Prior
Letters, you have not entered into any agreement that grants to or confers upon
any other party control of any Account or any of the Account Property and you
will not enter into any such agreement during the term of this letter agreement,
other than such agreements regarding control of the Accounts and the other
Account Property that you may enter into after the Effective Time with
Travelers; provided, however, that you and the Company hereby further agree that
the interests of Travelers in the Accounts and the other Account Property are
and shall at all times be subject to and subordinate to the interests of the
Bank Agent therein, in each case to the extent and in the manner provided in the
Intercreditor Agreement.
Each of you and the Company hereby agrees that this letter agreement
grants to and confers upon the Bank Agent "control" of each Account as
contemplated in Section 9.104 (and similar related provisions) of the UCC, and
the security interest in the Accounts and the other Account Property in favor of
the Bank Agent is and shall at all times be senior and superior in right of
priority to any security interest in any Account or any other Account Property
which may have been, or hereafter be, granted to Travelers.
[NAME OF FINANCIAL INSTITUTION]
Page 7
The Company and you hereby agree that no Account (i) is evidenced by an
instrument (as that term is defined in the UCC) or (ii) constitutes a securities
account or contains securities or investment property (as such terms are defined
in the UCC).
You hereby agree to comply with the restrictions, authorizations and
instructions set forth or described above in this letter agreement. Further, the
Company hereby agrees and you also acknowledge and agree that (a) each "deposit
account" (as such term is defined in the UCC) maintained by you in the name of,
or for the benefit of, the Company and identified on the attached Account
Schedule (as amended as permitted hereunder) shall be deemed to be an Account
and shall be subject to this letter agreement in all respects, (b) the Company
has a right of withdrawal over the Returned Items Account and the Depository
Account (as such term is defined in the Account Schedule attached hereto) only
by deposit to the Currency Account and the Company has the right to transfer
from the Currency Account to the Returned Items Account to cover overdrafts in
the Returned Items Account, (c) the Company has a right of withdrawal over the
Currency Account only by transfer to the Bank Agent to Account #____________ at
▇▇▇▇▇ Fargo Bank, National Association (the "CENTRAL DISBURSING ACCOUNT"), (d)
the Company has a right on a daily basis to transfer up to $2,500 from the
Currency Account to the Operating Account (as such term is defined in the
Account Schedule attached hereto) (provided the balance in the Operating Account
does not exceed $5,000), (e) the Company has a right on a weekly basis to
transfer up to $15,000 from the Currency Account to the Operating Account to
replenish postage stamp inventory in the Company's stores and (f) the Company
has a right to instruct you to convert funds deposited in the Currency Account
to currency and deliver the same to the custodial agent indicated on the
attached Account Schedule ("CUSTODIAL AGENT") pursuant to the agreements between
Custodial Agent and the Company, as the same may be amended, modified, or
substituted, with written approval of the Bank Agent if required, or such other
armored service company as the Bank Agent may designate in writing.
Nothing in this letter agreement shall require you to act in violation of
any applicable laws or any court order.
This letter agreement supplements, rather than replaces, your deposit
account agreement, terms and conditions and other standard documentation in
effect from time to time with respect to the Accounts or services provided in
connection with the Accounts (the "ACCOUNT DOCUMENTATION"), which Account
Documentation will continue to apply to the Accounts and such services, and the
respective rights, powers, duties, obligations, liabilities and responsibilities
of the parties thereto and hereto, to the extent not expressly conflicting with
the provisions of this letter (however, in the event of any such conflict, the
provisions of this letter agreement shall control).
This letter agreement shall be governed in accordance with the laws of the
State of Texas. The State of Texas shall be deemed to be your location for
purposes of Section 9.304(b) of the UCC.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
[NAME OF FINANCIAL INSTITUTION]
Page 8
If the foregoing accurately sets forth our agreements with respect to the
subject matter hereof, please sign below as indicated and return a signed copy
thereof to the Bank Agent or its legal counsel at such address as the Bank Agent
shall provide. This letter agreement may be executed in multiple counterparts.
Thank you.
ACE CASH EXPRESS, INC.,
as Company
By:_______________________________
Name:_____________________________
Title:____________________________
Approved as of the date first above written:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Bank Agent
By:_________________________
Name:_______________________
Title:______________________
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Monitoring Agent
By:_________________________
Name:_______________________
Title:______________________
Accepted and agreed to as of the date first above written:
[NAME OF FINANCIAL INSTITUTION]
By:_________________________
Name:_______________________
Title:______________________
[NAME OF FINANCIAL INSTITUTION]
Page 9
ACCOUNT SCHEDULE - [NAME OF FINANCIAL INSTITUTION]
[DATE OF SCHEDULE]
Account Account Custodial
State Number Type Agent
*BANK CONTACT FOR THE FOLLOWING IS [NAME OF CONTACT], FACSIMILE NUMBER [_________]
(1)
(2)
(3)
(4)
(1)
(2)
(3)
(4)
(1) Currency Account (the "CURRENCY ACCOUNT")
(2) Depository Account (the "DEPOSITORY ACCOUNT")
(3) Operating Account (the "OPERATING ACCOUNT")
(4) Returned Items Account (the "RETURNED ITEMS ACCOUNT")
and each other "deposit account" (as such term is defined in the UCC) maintained
by [NAME OF FINANCIAL INSTITUTION] from time to time in the name of, or for the
benefit of, the Company, and identified on a supplemental schedule
EXHIBIT F-2
[FORM OF PERFECTION LETTER]
[COMPANY LETTERHEAD]
___________ ___, 2004
SENIOR CONTROL AGREEMENT
[NAME OF FINANCIAL INSTITUTION]
[________________________________]
[________________________________]
Attn: [__________________________]
Re: Each of the accounts described on the attached Account Schedule
(collectively, the "ACCOUNTS" and individually, an "ACCOUNT")
Ladies and Gentlemen:
Reference is made to (i) that certain Intercreditor Agreement dated as of
[____________], 2004 (as may be amended, restated, supplemented or otherwise
modified from time to time, the "INTERCREDITOR AGREEMENT") by and among Ace Cash
Express, Inc., a Texas corporation (the "COMPANY"), ▇▇▇▇▇ Fargo Bank, National
Association, as administrative agent (the "BANK AGENT") for the lenders (the
"LENDERS") from time to time party to the Bank Agreement (as such term is
defined in the Intercreditor Agreement) and Travelers Express Company, Inc.
("TRAVELERS") and (ii) that certain Assignment of Deposit Accounts and Security
Agreement dated as of March 31, 2003, by the Company in favor of the Bank Agent
for the benefit of the Lenders (as such Assignment of Deposit Accounts and
Security Agreement may be amended, restated, supplemented or otherwise modified
from time to time, the "SECURITY AGREEMENT").
Pursuant to the Security Agreement, the Company has granted control of the
Accounts to the Bank Agent and granted to the Bank Agent a first priority
security interest in the Accounts and the Company's monies, funds, checks,
negotiable instruments and any other items or property deposited and/or held in
the Accounts from time to time and all proceeds thereof (all of the foregoing
hereinafter collectively referred to as the "ACCOUNT PROPERTY"), in each case,
to secure certain obligations and indebtedness of the Company owing to the Bank
Agent and the Lenders described therein. The Company hereby notifies you, and
you hereby acknowledge, that the Company has granted a security interest to the
Bank Agent in, and control of, the Accounts and the other Account Property.
WITH RESPECT TO ANY AND ALL INSTRUCTIONS YOU MAY RECEIVE FROM THE BANK
AGENT, THIS LETTER AGREEMENT, EFFECTIVE AS OF THE EFFECTIVE TIME (AS HEREINAFTER
DEFINED), SUPERSEDES ALL PRIOR LETTERS OF INSTRUCTION IN RESPECT OF THE ACCOUNTS
AND THE OTHER ACCOUNT PROPERTY TO WHICH YOU ARE A PARTY OR WHICH HAVE BEEN
DELIVERED TO YOU BY THE COMPANY ("PRIOR LETTERS").
[NAME OF FINANCIAL INSTITUTION]
Page 2
This letter shall become effective as of 12:01 a.m., Dallas, Texas time
(the "EFFECTIVE TIME"), on the date first written above upon execution of this
letter by each party hereto and delivery of the same to you.
The Company hereby agrees with the Bank Agent, and you hereby acknowledge,
that the Company has no power to withdraw from the Accounts except as expressly
permitted hereunder and that the Bank Agent may, at any time by written notice
to you, terminate or suspend any and all rights of the Company related to the
Accounts.
The Company hereby irrevocably and unconditionally authorizes, instructs
and directs you to comply, and you hereby agree to comply, with all instructions
originated by the Bank Agent with respect to the Accounts or directing
disposition of any or all monies, funds, checks, negotiable instruments or any
other items or properties in the Accounts, in each case without joinder or
further consent by the Company and as promptly after receipt thereof as is
reasonably possible so long as each such instruction is accompanied by a written
certification from Bank Agent stating that Bank Agent is authorized to originate
such instruction under, and in accordance with, the Intercreditor Agreement;
provided, however, that in the event of any insolvency, bankruptcy, liquidation,
reorganization or other similar proceedings or any receivership proceedings in
connection therewith, relative to the Company, the Company hereby irrevocably
and unconditionally authorizes, instructs and directs you to comply, and you
hereby agree to comply, with all instructions originated by the Bank Agent with
respect to the Accounts or directing disposition of any or all monies, funds,
checks, negotiable instruments or any other items or properties in the Accounts,
so long as each such instruction is accompanied by a written certification from
Bank Agent stating that a court of competent jurisdiction has authorized Bank
Agent to originate such instruction and having attached thereto a copy of an
order of such court granting to Bank Agent such authority, in each case without
joinder or further consent by the Company and as promptly after receipt thereof
as is reasonably possible. You are entitled to rely upon and are authorized and
directed to follow all instructions of the Bank Agent and you have no duty of
inquiry as to the authorization or authenticity of any such instructions so long
as they are given by an individual designated by the Bank Agent and accompanied
by either of the foregoing described certifications.
Notwithstanding the foregoing two paragraphs, until you receive notice
from the Bank Agent as set forth above, the Company shall be permitted to make
withdrawals from the Accounts from time to time subject to the conditions set
forth in this paragraph. All Accounts shall automatically sweep to the Currency
Account (as such term is defined in the Account Schedule attached hereto) on a
daily basis. The Company is authorized to make daily transfers from the Currency
Account to Account # 4588542456 at ▇▇▇▇▇ Fargo Bank, National Association (the
"CENTRAL DISBURSING ACCOUNT") (adjusted for cash required by the Company in the
ordinary course of operation of its local stores and funding the Returned Items
Account (as such term is defined in the Account Schedule attached hereto)
serviced by you (the "LOCAL CASH NEEDS"), which shall be deducted from the
Currency Account and delivered only to the applicable armored courier indicated
on the attached Account Schedule (the "CUSTODIAL AGENT")). Under no
circumstances shall the Company have the
[NAME OF FINANCIAL INSTITUTION]
Page 3
authority to authorize any transfer from the Accounts except as set forth in the
preceding sentence. In the event you receive written instructions originated by
the Bank Agent in accordance with the immediately preceding paragraph, you (a)
are authorized and directed to immediately transfer to the account designated by
the Bank Agent in such instructions all collected sums credited to or otherwise
deposited in the Accounts and all proceeds thereof and earnings thereon and (b)
hereby agree to immediately terminate all transfers directed by the Company and
at all times thereafter comply with the instructions originated by the Bank
Agent with respect to all subsequent transfers of Account Property from the
Accounts, without joinder or further consent by the Company. The Company, the
Bank Agent and you hereby agree that upon delivery of such written instructions,
(i) the Bank Agent shall have exclusive control over all subsequent transfers
from the Accounts, and the Company and you acknowledge that the Company shall
thereafter have no right to direct any such transfers, (ii) all services to be
performed by you in connection with the Accounts will be performed on behalf of
the Bank Agent, (iii) the Bank Agent will have all rights and remedies given the
Company in any agreement between you and the Company relating to the Accounts,
(iv) upon the request of the Bank Agent (without the Company's consent or
agreement), the Accounts will be transferred to and maintained in the name of
the Bank Agent and (v) the Company shall, notwithstanding the foregoing,
continue to pay all charges for your services rendered and any other charges,
costs or fees incurred by you or the Bank Agent in connection with this letter
agreement.
You agree to indicate by appropriate entry in your records with respect to
the Accounts or the Account Property the security interest of the Bank Agent
therein.
You agree to deliver copies of all bank statements which you send to the
Company (by law, agreement or otherwise) to the Bank Agent at the address
specified herein. You are further authorized, and the Company hereby consents,
to deliver any information requested by the Bank Agent related to the Accounts,
with any reasonable expense therefor to be paid by the Company.
You hereby waive and release any and all rights of offset, claims or
counterclaims against, and any and all security interests, banker's liens or
similar rights in or to, the Accounts or the Account Property (whether arising
under law, agreement or otherwise) other than the security interests in the
Accounts and the Account Property and your interests therein (if any) which have
been granted to Bank Agent.
These instructions may only be modified in writing by an agreement
executed by you, the Company and the Bank Agent; provided, however that the
attached Account Schedule may be amended by delivery of a revised schedule from
the Company and the Bank Agent to you. All notices hereunder shall be sent to
the following addressee:
[NAME OF FINANCIAL INSTITUTION]
Page 4
If to the Company:
Ace Cash Express, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
If to the Bank Agent:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇▇▇ (▇▇▇▇) ▇. ▇▇▇▇▇
Telephone No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
If to you:
[NAME OF FINANCIAL INSTITUTION]
[_______________________________________ ]
[_______________________________________ ]
Attention:[___________________ ]
Telephone No.: [______________ ]
Facsimile No.: [_____________ ]
All notices or other communications provided for hereunder shall be in
writing (including by facsimile transmission) and shall be deemed to have been
duly given or made (i) in the case of delivery by hand, when delivered, (ii) in
the case of delivery by mail, three business days (meaning a day other than
Saturday, Sunday or a day on which commercial banks in [CITY, STATE] are
authorized to close) after being deposited in the mails, postage prepaid, or
(iii) in the case of delivery by facsimile transmission, when delivered or
transmitted by facsimile machine, provided that any matter transmitted by
facsimile (a) shall be immediately confirmed by a telephone call to the
recipient at the number specified herein and (b) shall be followed promptly by a
hard copy original thereof.
Notwithstanding anything to the contrary in this letter agreement: (i) you
shall have only the duties and responsibilities with respect to the matters set
forth herein as is expressly set forth in writing herein and shall not be deemed
to be an agent, bailee or fiduciary for any party hereto; (ii) you shall be
fully protected in acting or refraining from acting in good faith without
investigation on any notice, instruction or request purportedly furnished to you
by the Company or Bank Agent in accordance with the terms hereof, in which case
the parties hereto agree that you have no duty to make any further inquiry
whatsoever; (iii) it is hereby acknowledged and agreed that you have no
knowledge of (and are not required to know) the terms and provisions of the
Intercreditor Agreement, the Security Agreement, or any other related
documentation or whether
[NAME OF FINANCIAL INSTITUTION]
Page 5
any actions by Bank Agent, the Company or any other person or entity are
permitted thereunder or consistent or inconsistent therewith; (iv) you shall not
be liable to any party hereto or any other person for any action or failure to
act under or in connection with this letter agreement except to the extent such
conduct constitutes your own willful misconduct or gross negligence (and to the
maximum extent permitted by law, you shall under no circumstances be liable for
any incidental, indirect, special, consequential or punitive damages); and (v)
you shall not be liable for losses or delays caused by force majeure,
interruption or malfunction of computer, transmission or communications
facilities, labor difficulties, court order or decree, the commencement of
bankruptcy or other similar proceedings or other matters beyond your reasonable
control.
The Company hereby agrees to indemnify, defend and save you harmless
against any loss, liability or expense (including reasonable fees and
disbursements of counsel who may be your employee) incurred in connection with
this letter agreement or the Accounts (except to the extent due to your willful
misconduct or gross negligence) or any interpleader proceeding relating thereto
or incurred at the Company's direction or instruction. Bank Agent hereby agrees
to indemnify, defend and save you harmless against any loss, liability or
expense (including reasonable fees and disbursements of counsel who may be your
employee) incurred in connection with any actions taken by you under this letter
agreement with respect to the Accounts (except to the extent due to your willful
misconduct or gross negligence). Bank Agent's and the Company's responsibilities
shall survive the termination hereof.
You hereby agree that (i) you are a "bank" within the meaning of Section
9.102 of the Uniform Commercial Code as in effect in the State of Texas (the
"UCC"), (ii) each Account constitutes a "deposit account" within the meaning of
Section 9.102 of the UCC, (iii) this letter agreement shall constitute an
"authenticated record" for purposes of the UCC, and (iv) other than the Prior
Letters, you have not entered into any agreement that grants to or confers upon
any other party control of any Account or any of the Account Property and you
will not enter into any such agreement during the term of this letter agreement,
other than such agreements regarding control of the Accounts and the other
Account Property that you may enter into after the Effective Time with
Travelers; provided, however, that you and the Company hereby further agree that
the interests of Travelers in the Accounts and the other Account Property are
and shall at all times be subject to and subordinate to the interests of the
Bank Agent therein, in each case, to the extent and in the manner provided in
the Intercreditor Agreement.
Each of you and the Company hereby agrees that this letter agreement
grants to and confers upon the Bank Agent "control" of each Account as
contemplated in Section 9.104 (and similar related provisions) of the UCC, and
the security interest in the Accounts and the other Account Property in favor of
the Bank Agent is and shall at all times be senior and superior in right of
priority to any security interest in any Account or any other Account Property
which may have been, or hereafter be, granted to Travelers.
The Company and you hereby agree that no Account (i) is evidenced by an
instrument (as that term is defined in the UCC) or (ii) constitutes a securities
account or contains securities or investment property (as such terms are defined
in the UCC).
[NAME OF FINANCIAL INSTITUTION]
Page 6
You hereby agree to comply with the restrictions, authorizations and
instructions set forth or described above in this letter agreement. Further, the
Company hereby agrees and you also acknowledge and agree that (a) each "deposit
account" (as such term is defined in the UCC) maintained by you in the name of,
or for the benefit of, the Company and identified on the attached Account
Schedule (as amended as permitted hereunder) shall be deemed to be an Account
and shall be subject to this letter agreement in all respects, (b) the Company
has a right of withdrawal over the Returned Items Account and the Depository
Account (as such term is defined in the Account Schedule attached hereto) only
by deposit to the Currency Account and the Company has the right to transfer
from the Currency Account to the Returned Items Account to cover overdrafts in
the Returned Items Account, and (c) the Company has a right of withdrawal over
the Currency Account only by transfer to the Central Disbursing Account, net of
Local Cash Needs, delivered to the Custodial Agent pursuant to the agreements
between Custodial Agent and the Company, as the same may be amended, modified,
or substituted, with written approval of the Bank Agent if required, or such
other armored service company as the Bank Agent may designate in writing.
Nothing in this letter agreement shall require you to act in violation of
any applicable laws or any court order.
This letter agreement supplements, rather than replaces, your deposit
account agreement, terms and conditions and other standard documentation in
effect from time to time with respect to the Accounts or services provided in
connection with the Accounts (the "ACCOUNT DOCUMENTATION"), which Account
Documentation will continue to apply to the Accounts and such services, and the
respective rights, powers, duties, obligations, liabilities and responsibilities
of the parties thereto and hereto, to the extent not expressly conflicting with
the provisions of this letter (however, in the event of any such conflict, the
provisions of this letter agreement shall control).
This letter agreement shall be governed in accordance with the laws of the
State of Texas. The State of Texas shall be deemed to be your location for
purposes of Section 9.304(b) of the UCC.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
[NAME OF FINANCIAL INSTITUTION]
Page 7
If the foregoing accurately sets forth our agreements with respect to the
subject matter hereof, please sign below as indicated and return a signed copy
thereof to the Bank Agent or its legal counsel at such address as the Bank Agent
shall provide. This letter agreement may be executed in multiple counterparts.
Thank you.
ACE CASH EXPRESS, INC.,
as Company
By:_____________________________
Name:___________________________
Title:__________________________
Approved as of the date first above written:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Bank Agent
By:_____________________
Name:___________________
Title:__________________
Accepted and agreed to as of the date first above written:
[NAME OF FINANCIAL INSTITUTION]
By:_____________________
Name:___________________
Title:__________________
[NAME OF FINANCIAL INSTITUTION]
Page 8
Account Schedule - [NAME OF INSTITUTION]
[DATE OF SCHEDULE]
State Account Number Account Type Custodial Agent
[(1)/(2)/(3)]
(1) Currency Account (the "CURRENCY ACCOUNT")
(2) Depository Account (the "DEPOSITORY ACCOUNT")
(3) Returned Items Account (the "RETURNED ITEMS ACCOUNT")
and each other "deposit account" (as such term is defined in the UCC) maintained
by [NAME OF FINANCIAL INSTITUTION] from time to time in the name of, or for the
benefit of, the Company and identified on a supplemental schedule
EXHIBIT G
[FORM OF PERFECTION LETTER - COURIER]
[COMPANY LETTERHEAD]
_______________ ___, 2004
[NAME OF ARMORED COURIER]
[______________________________]
[______________________________]
Attn: [__________________ ]
Re: Custodial Arrangement
Ladies and Gentlemen:
Reference is made to that certain Intercreditor Agreement dated as of
[_____________ ___], 2004 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "INTERCREDITOR AGREEMENT") by and
among Ace Cash Express, Inc., a Texas corporation (the "COMPANY"), ▇▇▇▇▇ Fargo
Bank, National Association, as administrative agent ("BANK AGENT") for itself
and all other lenders ("LENDERS") from time to time party to the Bank Agreement
(as such term is defined in the Intercreditor Agreement), and Travelers Express
Company, Inc. ("TRAVELERS").
The Company hereby notifies [NAME OF ARMORED COURIER] ("CUSTODIAL AGENT"),
and Custodial Agent hereby acknowledges, that the Company has assigned, pledged
and granted to the Bank Agent, for the benefit of Bank Agent and the Lenders, a
first priority security interest in certain property of the Company (the
"ASSETS"), including all of the Company's currency, coin, monies, funds, checks,
negotiable instruments, securities and other property and proceeds thereof
received, transported and delivered by Custodial Agent from time to time (the
"PROPERTY") in accordance with certain agreements and/or contracts from time to
time between Custodial Agent and the Company (as amended, restated, supplemented
or otherwise modified from time to time, collectively the "CONTRACTS"; the
Assets, the Property, and the Contracts are collectively referred to herein as
the "COLLATERAL") and pertaining to the store locations of the Company as set
forth on the attached schedule (the "TERRITORY"), to secure certain obligations
and indebtedness of the Company owing to the Bank Agent and the Lenders. The
Company also notifies Custodial Agent that, and Custodial Agent hereby
acknowledges that, the Company has assigned, pledged and granted to Travelers a
security interest (which is subordinate only to the security interest granted to
the Bank Agent for the benefit of the Bank Agent and the Lenders) in the
Collateral to secure certain obligations and indebtedness of the Company owing
to Travelers. Bank Agent and Travelers are collectively referred to herein as
the "SECURED PARTIES" and each individually as a "SECURED PARTY".
WITH RESPECT TO ANY AND ALL INSTRUCTIONS CUSTODIAL AGENT MAY RECEIVE FROM
ANY SECURED PARTY, THIS LETTER AGREEMENT, EFFECTIVE AS OF THE EFFECTIVE DATE (AS
HEREINAFTER DEFINED), SUPERSEDES ALL PRIOR LETTERS OF INSTRUCTION TO WHICH
CUSTODIAL AGENT IS A PARTY OR WHICH HAVE BEEN DELIVERED TO CUSTODIAL AGENT BY
THE COMPANY ("PRIOR
[NAME OF ARMORED COURIER]
Page 2
LETTERS"), BUT EXPRESSLY EXCLUDING LETTERS DELIVERED BY ACE FUNDING, LLC WHICH
SHALL REMAIN IN EFFECT.
This letter shall become effective as of the date first written above (the
"EFFECTIVE DATE") upon execution of this letter by each party hereto and
delivery of the same to Custodial Agent.
1. Notwithstanding any provision to the contrary contained in the
Contracts:
(a) Custodial Agent is hereby irrevocably authorized and directed by the
Company, upon the request of any Secured Party or its designee (as any Secured
Party may direct) delivered in accordance with Paragraph 3 hereof, to deliver to
any Secured Party or its designee (as any Secured Party may direct), to such
location or locations in the Territory as may be specified by any Secured Party
or its designee (as any Secured Party may direct), any and all Property and
other Collateral then and thereafter received, transported and delivered by
Custodial Agent pursuant to the Contracts; provided, however, that in the event
of any insolvency, bankruptcy, liquidation, reorganization or other similar
proceedings or any receivership proceedings in connection therewith, relative to
the Company, Custodial Agent is hereby irrevocably authorized and directed by
the Company, to deliver to such persons any and all Property and other
Collateral then and thereafter received, transported and delivered by Custodial
Agent pursuant to the Contracts as may be directed in writing by any Secured
Party so long as each such written direction is accompanied by a written
certification from such Secured Party stating that a court of competent
jurisdiction has authorized such Secured Party to issue such written direction
and having attached thereto a copy of an order of such court granting to such
Secured Party such authority. Custodial Agent acknowledges and agrees to comply
(i) with the preceding authorization and direction from the Company, (ii) with
any such request or instruction from any Secured Party or its designee (as any
Secured Party may direct), and (iii) with any such written direction from any
Secured Party, in each case delivered in accordance with Paragraph 3 hereof. The
Company and each Secured Party agrees that Custodial Agent shall incur no
liability whatsoever to the Company or any Secured Party in acting upon any
request or instruction which Custodial Agent reasonably believes to have been
given in the manner provided in Paragraph 3 by an authorized representative of
any Secured Party. Instructions of any Secured Party or its designee (as any
Secured Party may direct) shall control, and, except as permitted by any Secured
Party or its designee (as any Secured Party may direct) below in this letter
agreement or otherwise in writing, the Company shall not have any right or
authority whatsoever to instruct Custodial Agent with respect to the Property or
any other Collateral.
(b) The Company shall pay directly to Custodial Agent all costs and
expenses payable to Custodial Agent pursuant to the Contracts, including any
additional cost or expense which Custodial Agent shall require if Custodial
Agent is directed by any Secured Party to perform any service additional to or
different from the services specifically set forth in the Contracts. Custodial
Agent hereby waives and releases any and all rights of offset or counterclaim
against, and any and all carrier's liens, security interests or similar rights
in, the Property or the other Collateral which Custodial Agent may have by
reason of the Contracts or otherwise, except to the extent necessary to pay
Custodial Agent the fees and expenses due under the Contracts.
[NAME OF ARMORED COURIER]
Page 3
(c) This letter agreement shall not be modified or amended without the
prior written consent of Custodial Agent, each Secured Party and the Company. It
is expressly agreed that the Contracts may be amended to add thereto or to
delete therefrom a location by an amendment duly executed by Custodial Agent and
the Company, and that the Contracts as amended shall thereafter continue in full
force and effect. This letter agreement shall apply to the Contracts as amended.
The Company shall notify each Secured Party of any and all such amendments and
will provide copies thereof upon written request from any Secured Party.
(d) Custodial Agent hereby acknowledges that the Bank Agent, for its
benefit and the benefit of the Lenders, has been granted by the Company, and
that the Bank Agent, for its benefit and the benefit of the Lenders, currently
holds, a first priority security interest in the Collateral. Custodial Agent
hereby acknowledges that Travelers has been granted by the Company, and that
Travelers currently holds, a security interest in the Collateral which is
subordinate only to the security interest granted to the Bank Agent for the
benefit of the Bank Agent and the Lenders in the Collateral. Custodial Agent
agrees that at all times during which Custodial Agent is in possession of any
and all Property or other Collateral, Custodial Agent shall maintain possession
of and hold such Property and such other Collateral for the benefit of Bank
Agent, for its benefit and the benefit of the Lenders and Travelers.
(e) Custodial Agent agrees that if any Secured Party succeeds to the
interest of the Company in the Contracts by means of enforcement of its security
interest or otherwise, Custodial Agent shall, upon notice to Custodial Agent
from such Secured Party in accordance with Paragraph 3 below of such succession
of interest, accept, recognize and treat such Secured Party, and its
transferees, successors and/or assigns, as a party to the Contracts in the name
and stead of the Company and shall continue to perform all obligations of
Custodial Agent under the Contracts as long as the obligations of the Company
are similarly satisfied by such Secured Party, or its transferees, successors
and/or assigns (including the payment of amounts owed to Custodial Agent
pursuant to the Contracts) and as long as the Contracts otherwise remain in
effect.
(f) Custodial Agent agrees to provide each Secured Party with such
information and records relating solely to the performance of the Contracts as
such Secured Party may reasonably request from time to time; provided that,
Custodial Agent shall furnish to the Company a copy of all such information and
records which are so provided to any Secured Party. The Company agrees to
reimburse Custodial Agent for any additional costs and expenses incurred in
providing such information to the Secured Parties.
(g) In the event of loss of the Property, Custodial Agent's liability
shall be governed by the terms of the Contracts, provided that either the
Secured Parties or the Company (as agent for the Secured Parties) shall have the
right to present a claim to Custodial Agent for loss reimbursement in the manner
specified and allowed under the terms of the Contracts. Until this letter
agreement shall have been terminated, notwithstanding the terms of the
Contracts, any loss reimbursement for $25,000 or more shall be made payable to
any Secured Party or its designee (as any Secured Party may direct), unless
Custodial Agent is expressly directed in writing by any Secured Party or its
designee (as any Secured Party may direct) to make such loss reimbursement
payable directly to the Company. Any loss reimbursement for less than $25,000
may be made
[NAME OF ARMORED COURIER]
Page 4
payable to the Company, provided that any loss reimbursement paid after any
Secured Party or its designee (as any Secured Party may direct) has delivered a
notice to Custodial Agent directing disposition of the Property as provided in
Paragraph 1(a) above or Paragraph 2(c) below shall be made payable to the
Secured Parties.
(h) Custodial Agent shall have no liability in the event of any dispute
involving ownership of the Property or any other matter relating to this letter
agreement other than Custodial Agent's nonperformance of its agreements and
obligations set forth herein, and the Company agrees to indemnify and hold
Custodial Agent harmless from liability relating to a dispute over ownership of
the Property, unless such claim is the result of Custodial Agent's gross
negligence or willful misconduct. The Company agrees to pay all court costs and
reasonable attorneys' fees which Custodial Agent may incur as a result of any
such dispute, provided that such dispute or any claim arising therefrom is not
the result of Custodial Agent's nonperformance of its obligations set forth
herein or its gross negligence or willful misconduct.
2. Subject to the terms of Paragraph 1 above:
(a) Custodial Agent shall continue, pursuant to the Contracts, to pick up
sealed shipments said or represented to contain currency from the financial
institution set forth on the attached schedule ("DESIGNATED LOCAL BANK") for
delivery to the retail stores of the Company (the "STORES") in the Territory.
The sealed shipments shall be delivered by Custodial Agent to the Stores
specifically designated by the Company, but (notwithstanding any provision of
the Contracts to the contrary) no shipment shall be delivered to any location
other than one or more of the Stores. Notwithstanding any provision of the
Contracts to the contrary, only shipments said or represented to contain only
the Company employee payroll checks and/or mail (including the Company's
internal correspondence) may be delivered to the regional office or offices of
the Company in the Territory.
(b) Furthermore, Custodial Agent shall continue to pick up sealed
shipments said to contain all excess cash, checks, drafts and other instruments
that are made available to Custodial Agent at the Stores and shall deliver them
only to the Designated Local Bank pursuant to the Contracts.
(c) The instructions contained in this Paragraph 2 may be revoked at any
time by notice to that effect by an authorized representative of any Secured
Party or its designee (as any Secured Party may direct) given to Custodial Agent
in accordance with Paragraph 3 of this letter.
3. All requests, instructions and notices to be given pursuant to this
letter agreement shall be sent to the following addressee:
[NAME OF ARMORED COURIER]
Page 5
If to the Company:
Ace Cash Express, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
If to Custodial Agent:
[NAME OF CUSTODIAL AGENT]
[________________________________________]
[_______________________________________ ]
Attention:[____________________]
Telephone No.: [_______________]
Facsimile No.: [______________]
If to the Bank Agent:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇▇▇ (▇▇▇▇) ▇. ▇▇▇▇▇
Telephone No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
If to Travelers:
Travelers Express Company, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇ 8020
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:Chief Legal Counsel
Telephone No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Unless provided otherwise in this paragraph, all requests, instructions
and notices provided for hereunder shall be in writing (including by facsimile
transmission) and shall be deemed to have been duly given or made (i) in the
case of delivery by hand, when delivered, (ii) in the case of delivery by mail,
three business days (meaning a day other than Saturday, Sunday or a day on which
commercial banks in [CITY, STATE] are authorized to close) after being deposited
in the mails, postage prepaid, or (iii) in the case of delivery by facsimile
transmission, when delivered or transmitted by facsimile machine. All requests,
instructions and notices to be given to Custodial Agent by any Secured Party
hereunder may (a) be oral but shall not be binding until confirmed in writing,
provided that such Secured Party delivers written confirmation of such request,
instruction or notice, as provided in the preceding sentence, within one
business day after
[NAME OF ARMORED COURIER]
Page 6
such oral request, instruction or notice and provided further than
notwithstanding anything to the contrary contained herein, the Custodial Agent
may immediately rely on such oral notice without liability to the Company and,
(b) in the absence of Custodial Agent's representative named herein, may be
given to the Branch Manager or, in his or her absence, an Assistant Branch
Manager, of the Designated Local Bank as set forth on the attached schedule.
Custodial Agent and Designated Local Bank may rely upon oral instructions from
any Secured Party, pending written confirmation, without liability to the
Company. Custodial Agent shall comply with any request, instruction or notice as
promptly after receipt thereof as is reasonably possible.
4. The information set forth on the attached schedule may be amended by
the Company delivering a revised schedule to Bank Agent, Travelers, and
Custodial Agent.
5. By accepting this letter agreement, Custodial Agent represents that the
Contracts are in full force and effect and that Custodial Agent will not amend
the Contracts in any manner except in accordance with paragraph 1(c). Custodial
Agent agrees that the Contracts will not be terminated without at least ten (10)
days' prior written notice to the Secured Parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
[NAME OF ARMORED COURIER]
Page 7
If the foregoing accurately sets forth our agreements with respect to the
subject matter hereof, please sign below as indicated and return a signed copy
thereof to the Bank Agent or its legal counsel at such address as the Bank Agent
shall provide. This letter agreement may be executed in multiple counterparts.
Yours very truly,
ACE CASH EXPRESS, INC.,
as Company
By:________________________
Name:______________________
Title:_____________________
Approved as of the date first above written:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Bank Agent
By:_____________________
Name:___________________
Title:__________________
TRAVELERS EXPRESS COMPANY, INC., as Travelers
By:_____________________
Name:___________________
Title:__________________
Accepted and agreed to as of the date first above written:
[NAME OF ARMORED COURIER]
By:_____________________
Name:___________________
Title:__________________
[NAME OF ARMORED COURIER]
Page 8
[NAME OF ARMORED COURIER]
[DATE OF SCHEDULE]
Store Number City & State Designated Local Bank and Contact
Information
EXHIBIT H
[FORM OF CASH HOLDING REPORT]
To: ▇▇▇▇▇ Fargo Bank, National Association,
as Administrative Agent
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: [_____________________________]
This Report ("REPORT") is delivered pursuant to that certain First Amended
and Restated Credit Agreement dated as of [____________], 2004, by and among Ace
Cash Express, Inc., a Texas corporation (the "COMPANY"), the lenders from time
to time party thereto (the "LENDERS"), and ▇▇▇▇▇ Fargo Bank, National
Association, as the administrative agent for the Lenders (in such capacity, the
"AGENT")(as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "AGREEMENT"; all capitalized terms used herein
and not otherwise defined shall have the meanings assigned to them in the
Agreement). This Report covers the calendar week ended ________ ___, 200__, and
is delivered to the Agent pursuant to Section 5.05(d) of the Agreement.
The Company and/or its Subsidiaries opened the following accounts in the
calendar week ended _________ ___, 200__, and such accounts are or will be used
to maintain Cash Holdings:
FINANCIAL INSTITUTION
HAS
LEGAL NAME OF FINANCIAL INSTITUTION PREVIOUSLY DELIVERED A LETT
ACCOUNT NO. ACCOUNT HOLDER MAINTAINING ACCOUNT AGREEMENT
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
The Company and/or its Subsidiaries entered into contracts with the
following armored couriers in the calendar week ended ___________ ___, 200__,
and such armored couriers are or will be used to transport Cash Holdings:
ARMORED COURIER HAS PREVIOUSLY
LEGAL NAME OF ARMORED COURIER DELIVERED A LETTER AGREEMENT
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
1
EXHIBIT I
[FORM OF COMPLIANCE CERTIFICATE]
FINANCIAL COVENANT AND COMPLIANCE CERTIFICATE
FOR CURRENT REPORTING PERIOD BEGINNING ___________, _______ AND
ENDING __________, _______ ("CURRENT PERIOD")
All capitalized terms used herein, unless otherwise defined herein, shall have
the meanings set forth in that certain First Amended and Restated Credit
Agreement, dated as of July ___, 2004, by and among ACE Cash Express, Inc.,
▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent, and the other
Lenders parties thereto (as amended, restated, modified, or supplemented, the
"Agreement").
FINANCIAL COVENANTS.
Indicate Compliance
1. Net Worth. The Borrower shall not any time permit the Net Worth of the
Borrower and its Subsidiaries on a Consolidated basis to be less than
$133,700,000 plus (b) seventy-five percent (75%) of all Net Income earned
after the Closing Date during any fiscal quarter, provided, however that
fiscal quarters in which Net Income is a negative amount will be excluded
from the calculation of Net Income earned after the Closing Date, plus (c)
an amount equal to the (100%) of all proceeds of any offering of Equity
Interests (net of offering and professional fees and expenses) by the
Borrower or any of its Subsidiaries occurring after the Closing Date that
is permitted hereunder.
Yes No
Calculation $133,700,000
Plus: 75% of cumulative Net Income
accruing after the Closing Date
(excluding the aggregate
amount of any losses incurred
during any calendar quarters
occurring after the Closing $ __________________
Date)
Plus: Net proceeds of equity $ __________________
offerings $ __________________
Equals: Minimum Net Worth
Actual
Calculation Total capital stock $ __________________
Plus: Paid-in capital $ __________________
Plus: Retained Earnings $ __________________
Minus: Treasury Stock $ __________________
Equals: Net Worth $ __________________
2. EBITDA. The Borrower shall not at any time permit as of the end of any
fiscal quarter, permit the aggregate EBITDA of the Borrower and its
Subsidiaries on a Consolidated basis for the four-quarter period ending on
the last day of such fiscal quarter to be less than 85% of the aggregate
EBITDA of the Borrower and its Subsidiaries on a Consolidated basis for
the four-quarter period ending on the last day of the immediately
preceding fiscal quarter.
1
The Company and/or its Subsidiaries opened the following stores during the
calendar week ended ____________, 200_ serviced by the indicated bank and
courier:
STORE NUMBER CITY/STATE BANK COURIER
-------------- ------------ ----------------- ----------------
The Company hereby represents, warrants, and certifies that as of the
date hereof the Company is in compliance with Section 6.20 of the Agreement.
This Report is executed on ___________ ____, 200__, by the duly elected,
qualified and acting [TITLE] of the Company.
ACE CASH EXPRESS, INC.,
as Company
By:___________________________
Name:
Title:
2
Yes No
Required
Calculations a. Consolidated EBITDA for four consecutive
fiscal quarter period ending on immediately
preceding Calculation Date* $___________________
b. Multiplied by 0.85
c. Required EBITDA $___________________
Actual
Consolidated EBITDA for four previous fiscal
quarter period ending on Calculation Date** $____________________
*Calculation of Consolidated EBITDA for four
consecutive fiscal quarter period ending on
immediately preceding Calculation Date
Net Income for such period $____________________
Plus: Interest Expense for such period $____________________
Plus: Federal, state and local income
taxes for such period $____________________
Plus: Depreciation, amortization and
other non-cash charges for such
period (excluding, however, any
reserves or non-cash charges
relating to, or in respect of,
Payday Loans or any other loan
program administered by the
Borrower or its Subsidiaries) $____________________
$_____________________
Minus: Extraordinary gains for such period
Plus: Extraordinary losses for such period $____________________
Equals: EBITDA for such period $____________________
2
**Calculation of Consolidated EBITDA for four
fiscal quarter period ending on Calculation
Date.
Net Income for such period $____________________
Plus: Interest Expense for such period $____________________
Plus: Federal, state and local income
taxes for such period $____________________
Plus: Depreciation, amortization and
other non-cash charges for such
period (excluding, however, any $____________________
reserves or non-cash charges
relating to, or in respect of,
Payday Loans or any other loan
program administered by the
Borrower or its Subsidiaries) $____________________
Minus: Extraordinary gains for such period $____________________
Plus: Extraordinary gains for such
period $____________________
Equals: EBITDA for such period $____________________
3. Debt to EBITDA Ratio. At the end of any fiscal quarter, the Borrower shall
not permit the Debt to EBITDA Ratio on a Consolidated basis to be equal to
or more than (i) 2.75 to 1.00 from the Closing Date through and including
December 31, 2005 and (ii) 2.50 to 1.00 at any time thereafter.
Yes No
Calculation Funded Indebtedness $ ________________________
EBITDA $ ________________________
Funded Indebtedness/EBITDA
(Debt to Cash Flow Ratio) = ______________ to 1.00
4. Cash Flow Coverage Ratio. The Borrower shall not permit the Cash Flow
Coverage Ratio of the Borrower and its Subsidiaries on a Consolidated
basis to be less than 1.25:1.00 at any time.
Yes No
Calculation: EBITDA: EBITDA for 12 consecutive month period
ending on such Calculation Date $___________
3
Minus: Federal, state and local taxes actually
paid for 12 consecutive month period
ending on such Calculation Date $___________
Minus: total capital expenditures paid in cash
for 12 consecutive month period ending
on such Calculation Date $___________
Minus: Treasury Stock purchased during 12
consecutive month period ending on such
Calculation Date $___________
Plus: Rent expense during 12 consecutive month
period ending on such Calculation Date $___________
Equals: Adjusted EBITDA $___________
Adjusted Expenditures: cash Interest Expense paid
for 12 consecutive month period ending on such
Calculation Date $___________
Plus: Current portion of long term debt $___________
Plus: Current portion of Capitalized Lease
Obligations $___________
Plus: Rent expense $___________
Equals: Adjusted Expenditures $___________
Adjusted EBITDA/Adjusted Expenditures
(Cash Flow Coverage Ratio) =__________ to 1.00
FINANCIAL STATEMENTS AND REPORTS:
a. Annual CPA audited FYE consolidated and consolidating financial statements
with Compliance Certificate and SEC Form 10-K on or before 90 days after
FYE or such earlier time as my be required under applicable law Yes No
b. Quarterly unaudited consolidated and consolidating financial statements
with Compliance Certificate and SEC Form 10-Q within forty-five (45) days
of each quarter end (except for fourth quarter). Yes No
The undersigned hereby certifies that the above information and computations are
true and correct and not misleading as of the date hereof, and that since the
date of the Borrower's most recent Compliance Certificate (if any):
No Default or Event of Default has occurred under the
Agreement during the Current Period, or been discovered from a
prior period, and not reported.
4
A Default or Event of Default (as described below) has
occurred during the Current Period or has been discovered from
a prior period and is being reported for the first time.
Description of Default or Event of Default:______________________________
ACE CASH EXPRESS, INC.,
as Borrower
By: ________________________
Name: ______________________
Title: _____________________
Date: ______________________
5
EXHIBIT J
[FORM OF ASSIGNMENT AND ASSUMPTION]
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[INSERT NAME OF ASSIGNOR] (the "Assignor") and [INSERT NAME OF ASSIGNEE] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the First Amended and Restated Credit Agreement
identified below, receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Agent as contemplated below (i) all of the Assignor's rights and obligations
in its capacity as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including any letters of credit and guaranties included in such facilities) and
(ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity as
a Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in
equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to
clauses (i) and (ii) above being referred to herein collectively as the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[AND IS AN AFFILIATE/APPROVED FUND OF [IDENTIFY LENDER](1)]
3. Borrower(s): ACE Cash Express, Inc. (the "Borrower")
4. Administrative Agent: ▇▇▇▇▇ Fargo Bank, National Association, as the
Administrative Agent under the Credit Agreement
(the "Agent")
------------------------
(1) Select as applicable.
5. Credit Agreement: First Amended and Restated Credit Agreement dated as of
July ___, 2004 among Borrower, the Lenders parties
thereto, Agent, and the other agents parties thereto (as
amended, supplemented, restated or otherwise modified,
the "Credit Agreement")
6. Assigned Interest:
Aggregate Amount of Amount of Commitment/Loans Percentage Assigned of
Facility Assigned(2) Commitment/Loans for all Lenders Assigned Commitment/Loans(3)
$ $ %
$ $ %
$ $ %
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:_____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:_____________________________
-------------------------------
(2) Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g. "Revolving
Commitment" or "Seasonal Revolving Commitment")
(3) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
[CONSENTED TO AND](4) Accepted:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By_________________________________
Title:
[CONSENTED TO:](5)
ACE CASH EXPRESS, INC.,
as Borrower
By________________________________
Title:
------------------------------------
(4) To be added only if the consent of the Agent is required by the terms of the
Credit Agreement.
(5) To be added only if the consent of the Borrower is required by the terms of
the Credit Agreement.
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Credit Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Credit Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Credit Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 5.05 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Agent or any other Lender, and (v) if it is a Foreign Lender, attached to
the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the Agent shall make
all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts which
have accrued to but excluding the Effective Date and to the Assignee for amounts
which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of New York.
EXHIBIT K
FORM OF CERTIFICATE OF UPDATE
TO: ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ (▇▇▇▇) ▇. ▇▇▇▇▇
To Administrative Agent:
The undersigned is a Responsible Officer of Ace Cash Express, Inc. (the
"Borrower"), and is authorized to make and deliver this Certificate of Update
(this "Certificate") pursuant to that certain First Amended and Restated Credit
Agreement dated as of July __, 2004 by and among the Borrower, ▇▇▇▇▇ Fargo Bank,
National Association ("WFB"), as administrative agent for the Lenders (WFB, in
such capacity, is herein referred to as the "Administrative Agent") and the
Lenders party thereto (as may be amended, supplemented, restated or otherwise
modified from time to time, the "Credit Agreement"). All terms used herein and
not otherwise defined shall have the meanings as set forth in the Credit
Agreement.
In connection with the foregoing and pursuant to the terms and provisions
of the Credit Agreement, the undersigned hereby certifies to the Administrative
Agent and the Lenders that the following statements are true and correct:
1. Schedule 3.15(d) of the Credit Agreement. Except as set forth on
Schedule 1 attached hereto, the information provided on Schedule 3.15(d) of the
Credit Agreement is true and correct as of the date hereof as though such
information was provided as of the date hereof.
2. Schedules to Intercreditor Agreement. Except as set forth on Schedule 2
attached hereto, the information provided on the Schedules to the Intercreditor
Agreement is true and correct as of the date hereof as though such information
was provided as of the date hereof.
3. Schedules to the Security Documents. Except as set forth on Schedule 3
attached hereto, the information provided on the Schedules to the Security
Documents is true and correct as of the date hereof as though such information
was provided as of the date hereof.
[Remainder of Page Intentionally Left Blank]
The undersigned hereby certifies that the information provided herein is
true and correct and not misleading as of the date hereof.
ACE CASH EXPRESS, INC.,
as Borrower
By:
Name:____________________
Title:___________________
Dated as of:___________________
Signature Page to Certificate of Update
Schedule 1
Changes to Schedule 3.15(d) of the Credit Agreement
Schedule 1 to Certificate of Update
Schedule 2
Changes to Schedules to Intercreditor Agreement
Schedule 2 to Certificate of Update
Schedule 3
Changes to Schedules to the Security Documents
Schedule 3 to Certificate of Update
EXHIBIT L
FORM OF PERFECTION CERTIFICATE
Each of the undersigned (each, a "Loan Party" and, together, the "Loan
Parties"), after due investigation and with reference to the First Amended and
Restated Credit Agreement dated effective as of July 30, 2004, (as may be
amended, supplemented, restated or otherwise modified, the "Credit Agreement")
by and among Ace Cash Express, Inc., a Texas corporation (the "Borrower"), ▇▇▇▇▇
Fargo Bank, National Association ("WFB"), as administrative agent for the
Lenders (WFB, in such capacity, is herein referred to as the "Administrative
Agent"), and the Lenders party thereto, does hereby certify as of the date
hereof as follows (with capitalized terms used and not defined herein having the
meanings ascribed to them in the Credit Agreement):
1. Loan Parties. Schedule I hereto lists (a) the full and correct legal
name of each Loan Party (in each case as it appears on its respective
certificate of incorporation), and (b) the organizational number of each Loan
Party issued by such entity's state of incorporation (if any).
2. Locations. Schedule II sets forth for each Loan Party (a) the location
of its chief executive office, (b) each location where its books and records are
maintained and (c) each location where Collateral is maintained.
3. Other Names. Schedule III hereto lists (a) all names (including trade
names and similar appellations) presently used by each Loan Party or any of its
respective divisions or other business units and (b) all names (including former
legal names and trade names or similar appellations) used by each Loan Party or
any of its respective divisions or other business units during the past five
years.
4. Outside Locations of Collateral. Schedule IV lists each person or
entity (other than a Loan Party, a Lender or a depository institution that
maintains Deposit Accounts) that has or may have possession of any Collateral.
5. Instruments and Securities. Schedule V lists all securities (whether or
not evidenced by a certificate) and all instruments (other than checks and
negotiable instruments in the ordinary course of business) intended to
constitute Collateral which are held by each Loan Party.
6. Intellectual Property. Schedule VI lists all Trademark Collateral (as
such term is defined in the Trademark Security Agreement) and Patent Collateral
(as such term is defined in the Patent Security Agreement).
7. Deposit Accounts. Schedule VII is a complete and correct list of all
Deposit Accounts in which any Loan Party has any interest and correctly
describes the name of the account holder, the bank in which such account is
maintained (including the specific branch), the street address (including the
specific branch) and ABA number of such bank, the account number, and the
account type.
1
8. UCC Filing Jurisdictions. Schedule VIII hereto lists all jurisdictions
in which financing statements on Form UCC-1 must be filed in order to perfect a
security interest in all assets of the Loan Parties which are intended to
constitute Collateral.
9. Acknowledgment. The undersigned acknowledge that this Perfection
Certificate is provided in connection with the Credit Agreement and that the
Administrative Agent and the Lenders will rely upon the information contained
herein. The undersigned further acknowledge and agree that the information
contained herein shall be deemed to be a representation and warranty under the
Credit Agreement, and that any misstatements or omissions contained herein may
constitute an Event of Default under the Credit Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, the undersigned have executed this Perfection
Certificate this _____ day of July, 2004.
ACE CASH EXPRESS, INC.
By:__________________________________
Name:___________________________
Title:__________________________
CHECK EXPRESS, INC.
Q.C. & G. FINANCIAL, INC.
PUBLIC CURRENCY, INC.
CHECK EXPRESS FLORIDA, INC.
CHECK EXPRESS FINANCE, INC.
CHECK-X-CHANGE CORPORATION
CHECK EXPRESS SOUTH CAROLINA, INC.
CHECK EXPRESS USA, INC.
By:__________________________________
Name:___________________________
Title:__________________________
[Signature Page to the Perfection Certificate]
SCHEDULE I
PERSONS
The full and correct legal name and organizational number of the Borrower is: Ace Cash Express, Inc. (Id# 60190500)
The full and correct legal name and organizational number of each Subsidiary of
the Borrower is:
Subsidiary
Wholly owned by Ace Cash Express, Inc.
Check Express, Inc., a Florida corporation (Id# J25534)
Q. C.& G. Financial, Inc., an Arizona corporation (Id# 0719507-6)
Public Currency, Inc., a California corporation (Id# C-0634743)
Wholly owned by Check Express, Inc.
Check Express Florida, Inc., a Florida corporation (Id# M76903)
Check Express Finance, Inc., a Florida corporation (Id# P65453)
Check-X-Change Corporation, a California corporation (Id# C-1162405)
Check Express South Carolina, Inc., a Florida corporation (Id# S20354)
Check Express USA, Inc., a Florida corporation (Id# J70324)
Schedule I to Perfection Certificate
Schedule I to Perfection Certificate
SCHEDULE II
LOCATIONS
All Loan Parties chief executive office and books and records are at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇.
Attached is a schedule of all Ace locations
Schedule II to Perfection Certificate
ACE LOCATIONS
Store Address City State
----- ------- ---- -----
852 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
2189 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
2187 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇
2183 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. FT ▇▇▇▇▇ AR
2184 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. FT ▇▇▇▇▇ AR
2185 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. FT ▇▇▇▇▇ AR
2102 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
2106 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
2111 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
2126 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
2186 501 ▇▇▇▇▇▇▇▇ ▇▇▇▇ AR
2188 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
2108 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
2103 ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
2136 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
2181 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. VAN BUREN AR
2182 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
2124 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
1229 ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
211 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇
275 ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
225 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
1225 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇
1228 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
1230 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
224 ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
247 ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
277 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇
280 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
298 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
1204 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
1223 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇
1224 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
1227 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
1235 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
249 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
201 ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
202 ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
203 ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
206 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
212 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
214 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
217 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
219 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
223 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
232 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
236 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
237 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇
245 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇
246 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇
252 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
253 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
257 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
261 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
263 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
274 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
276 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
296 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
297 ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇
299 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇
1209 ▇▇▇▇ ▇.▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
1210 ▇▇▇▇▇ ▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
1214 ▇▇▇▇ ▇.▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
1215 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
1216 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇
1217 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
1218 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇. ▇ ▇▇▇▇▇▇▇ ▇▇
1219 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
1221 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇. #▇ ▇▇▇▇▇▇▇ ▇▇
1222 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇
294 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇
215 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
241 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
209 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
287 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇
210 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
220 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
222 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
227 ▇▇▇▇ ▇. ▇▇. ▇▇▇▇'▇ ▇▇▇▇▇▇ ▇▇
228 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
250 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
251 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
286 ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
1231 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
1232 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
1236 ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
1237 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
1238 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇
290 ▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇
4022 ▇▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇. ARLETA CA
4059 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4051 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
4052 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
4068 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
4014 ▇▇ ▇▇▇▇ ▇▇▇ ▇▇. CALEXICO CA
4020 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
4097 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,▇▇▇.▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
4062 2517 #B ▇▇▇▇▇▇▇▇ ROAD CERES CA
4096 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4110 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. #▇▇▇ ▇▇▇▇▇▇ ▇▇
4018 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
4114 ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
4058 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4079 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
4002 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇
4048 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4049 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4061 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4067 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4111 ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4112 ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4039 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
4035 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
4054 27300 HESPERIAN HAYWARD CA
4055 591 TRES PINO'S ROAD HOLLISTER CA
4021 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇
4106 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇
4122 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇
4011 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4008 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4009 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4010 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4016 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
4017 745 S. VERMONT LOS ANGELES CA
4019 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4032 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4033 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4034 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4037 ▇▇▇▇ ▇. ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4042 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇.▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4044 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4113 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4074 1187 S. MAIN MANTECA CA
4093 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
4047 ▇▇▇▇ ▇.▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4050 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4060 ▇▇▇▇ ▇.▇▇▇▇▇▇ MORE MODESTO CA
4064 ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4065 ▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇ MODESTO CA
4066 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇
4072 1320 ▇▇▇▇▇▇▇▇▇▇, STE E8 MODESTO CA
4073 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4075 ▇▇▇▇ ▇.▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4116 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4117 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4119 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4063 ▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4076 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4077 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4078 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4080 610 HEGENBERGER OAKLAND CA
4001 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇
4029 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4069 ▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
4004 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇
4087 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇
4123 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
4094 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
4095 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
4098 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
4101 ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
4103 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
4104 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
4003 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
4082 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
4045 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
4070 13220 SAN PABLO AVENUE SAN PABLO CA
4086 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
4036 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇
4090 170 E.CROSS TULARE CA
4056 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4024 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ VAN NUYS CA
4040 ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇ ▇▇
4091 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4092 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4038 ▇▇▇-▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
76 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
47 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇
49 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
54 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇
57 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
58 ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
60 ▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
61 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
80 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
84 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
151 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ CO
103 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
107 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
110 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
111 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
112 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
113 ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
114 ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
115 ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
116 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
117 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
120 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
122 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
123 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
124 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
161 535 Garden of the Gods ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
9205 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
91 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
25 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. DENVER CO
40 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
46 1305 KRAMERIA UNIT J DENVER CO
48 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
52 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
74 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
79 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
88 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
89 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
97 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
98 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
152 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇
154 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇
157 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
158 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇
9209 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
9214 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇
43 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
81 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
41 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
59 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
87 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
155 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
9101 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
118 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇
119 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇ ▇▇▇▇▇▇ ▇▇
9201 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CO
156 3913B - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
93 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
150 3924 ▇▇▇▇▇▇▇▇▇ WHEAT RIDGE CO
618 ▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
628 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
635 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.,▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
638 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
654 ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
661 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇.▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
667 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
668 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
669 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
670 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
672 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
675 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
676 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
677 ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
682 ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇
699 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
3292 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
3237 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
3228 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. #F BRANDON FL
3299 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3203 ▇▇▇▇ ▇▇▇▇-▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
3205 ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
3209 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
3260 ▇▇▇ ▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
3264 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
3269 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
3242 ▇▇▇▇ ▇▇▇ ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3291 ▇▇▇▇ ▇. ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
3256 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3257 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3258 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3259 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3261 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3265 ▇▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3266 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3270 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3287 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3289 ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
3271 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
3227 ▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
3294 ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
3306 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
3315 ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
3255 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇
3206 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
3223 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇
3226 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
3241 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
3275 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
3278 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇
3284 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
3331 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
3218 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
3321 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
3249 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, #▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
3273 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
3212 ▇▇▇▇ ▇▇▇▇ ▇▇▇ #▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
3302 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
3207 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
3216 ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
3253 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
3288 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
3201 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
3208 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
3210 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
3220 ▇▇▇▇-▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
3224 ▇▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
3229 ▇▇▇▇-▇ ▇.▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
3248 ▇▇▇▇ ▇.▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
3263 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ #▇▇ ▇▇▇▇▇ ▇▇
3280 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
3296 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
3311 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
3272 9303 N. 56TH @▇▇▇▇▇ TEMPLE TERRACE FL
3262 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
858 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
806 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
811 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇
816 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇ ▇▇
824 ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
831 ▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
839 ▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
840 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇
841 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇
856 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇
909 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
910 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
846 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
969 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
830 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
835 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
804 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
827 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
837 ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇. ▇ ▇▇▇▇▇▇▇ ▇▇
843 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. #▇▇▇ ▇▇▇▇▇▇ ▇▇
850 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
822 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
823 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
860 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,#▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
813 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
853 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
905 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
906 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
821 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇
838 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
844 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇
855 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
817 ▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
847 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇
861 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇
810 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
836 ▇▇▇▇ ▇▇▇ ▇▇ @ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
845 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
901 ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
902 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
801 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
814 ▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
851 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
818 3210-I NORCROSS - TUCKER GA
2512 1017 E. COLISEUM FT. ▇▇▇▇▇ IN
2519 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ IN
2501 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2503 2435 N ▇▇▇▇▇▇▇ INDIANAPOLIS IN
2506 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ IN
2508 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2510 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ IN
2511 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2513 5608 GEORGETOWN INDIANAPOLIS IN
2514 8091 ▇. ▇▇▇▇▇▇▇ INDIANAPOLIS IN
2520 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2521 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ IN
2523 40 NORTH DELAWARE INDIANAPOLIS IN
2524 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ IN
2525 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ IN
2527 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
2528 9515 ▇. ▇▇▇▇▇▇▇▇▇▇ STREET INDIANAPOLIS IN
2533 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2534 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ #▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2535 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2536 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.,▇▇▇.▇ INDIANAPOLIS IN
2537 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ IN
2538 4112 N. HIGH SCHOOL ROAD INDIANAPOLIS IN
2539 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. INDIANAPOLIS IN
2541 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ IN
2542 3709 E Washington Indianapolis IN
2529 3762 N. MERIDIAN INDIANPOLIS IN
2518 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ MUNCIE IN
2701 ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
2702 ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
2703 ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
2704 ▇▇▇▇ ▇ ▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇
2705 ▇▇▇ ▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
2706 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
2805 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
2806 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
2804 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
717 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
718 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
721 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
723 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
724 19973 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
706 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
710 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
712 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
711 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
704 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
714 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
730 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
732 2222 Ambassador ▇▇▇▇▇▇▇ Lafayette LA
729 1702 ▇▇▇▇▇▇▇▇ Memorial Lake Charles LA
733 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
722 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
702 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
713 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
719 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
725 6417 AIRLINE DRIVE METAIRIE LA
726 5920 Veterans Memorial Metairie LA
Schedule II to Perfection Certificate
728 3535 SEVERN AVE. METAIRIE LA
731 1103 E. Admiral ▇▇▇▇▇ New Iberia LA
701 3804 DUBLIN NEW ORLEANS LA
705 ▇▇▇▇ ▇-▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
707 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
709 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
715 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
716 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
720 334 CARONDELET NEW ORLEANS LA
1346 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
703 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
664 ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇
601 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
603 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
607 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇
611 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇
634 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
641 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
646 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
649 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
650 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
688 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
697 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
1609 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
629 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
696 ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ MD
655 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
637 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
604 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
632 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
678 ▇▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
665 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
625 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
640 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ MD
692 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ MD
623 ▇▇▇▇ ▇. ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MD
686 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
610 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
613 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇
659 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
636 5221 INDIAN HEAD HYWY. OXEN HILL MD
Schedule II to Perfection Certificate
602 803 - A SOUTHERN AVENUE OXON HILL MD
621 ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ MD
679 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
614 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
687 ▇▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
663 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
671 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
2301 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇
2307 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
2315 8434 LINDBERGH FLORISSANT MO
2306 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
2303 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇
2304 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇
2312 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇
2313 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇
2308 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇. ▇▇▇▇▇▇▇ ▇▇
2302 ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇. ▇▇▇▇▇ ▇▇
2314 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.▇▇▇▇▇ ▇▇
916 ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
919 ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
921 ▇▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
923 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
925 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
931 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇
932 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
936 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
952 ▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
956 ▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
963 ▇▇▇▇ - ▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
970 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇
937 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
954 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
967 ▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
965 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
966 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
958 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
2201 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2202 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2203 1331 ▇▇▇▇ TABO NE ALBUQUERQUE NM
2204 ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2205 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2206 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
2207 111 COORS BLVD. N.W. ALBUQUERQUE NM
2208 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2209 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2210 3200 - ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2220 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2221 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
2222 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
4505 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇
4514 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇
4502 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇
4503 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
4504 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
4506 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
4507 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇
4508 ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇
4509 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇
4510 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇. ▇▇▇ ▇▇▇▇▇ ▇▇
4511 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇
4512 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇
4516 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
4517 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
1022 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇
1008 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
1019 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
1001 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
1003 ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
1004 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
1005 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
1007 5498 CHESTER AVE CLEVELAND OH
1010 2079 W. 25TH STREET CLEVELAND OH
1011 11411 BUCKEYE ROAD CLEVELAND OH
1015 16604 LORAIN AVENUE CLEVELAND OH
1016 14001 TRISKETT ROAD CLEVELAND OH
1018 10589 ST. CLAIR AVENUE CLEVELAND OH
1023 7310 Harvard Ave Cleveland OH
1024 4274 Fulton Cleveland OH
1002 1530 HAYDEN AVENUE EAST CLEVELAND OH
1006 15500 EUCLID AVE EAST CLEVELAND OH
1013 14782 DETROIT AVENUE LAKEWOOD OH
1017 15701 BROADWAY ROAD MAPLE HEIGHTS OH
1014 6277 #D PEARL RD PARMA HEIGHTS OH
1012 2167 SOUTH TAYLOR ROAD UNIVERSITY HEIGHTS OH
Schedule II to Perfection Certificate
1021 34861 EUCLID AVE. WILLOUGHBY OH
2414 3306 MAHONING AVENUE YOUNGSTOWN OH
2415 272 BOARDMAN-CANFIELD RD YOUNGSTOWN OH
2417 4040 YOUNGSTOWN-POLAND RD YOUNGSTOWN OH
2424 3029 BELMONT AVE. YOUNGSTOWN OH
2425 2550 1/2 MARKET STREET YOUNGSTOWN OH
2017 900 S. BROADWAY EDMOND OK
2034 824 S. AIR DEPOT BLVD MIDWEST CITY OK
2037 3537 N SHIELDS BLVD MOORE OK
2012 7621 S. PENN OKLAHOMA CITY OK
2014 6601 NW EXPRESSWAY OKLAHOMA CITY OK
2018 2505 NW 23RD ST OKLAHOMA CITY OK
2021 216 NW 23RD STREET OKLAHOMA CITY OK
2035 5305 S. WESTERN AVE OKLAHOMA CITY OK
2036 5943 NW 23RD ST OKLAHOMA CITY OK
2038 3001 N MAY AVE OKLAHOMA CITY OK
2041 3001 S MAY AVE OKLAHOMA CITY OK
2048 4503 N.W. 23RD STREET OKLAHOMA CITY OK
2051 1425 S.W. 59TH STREET OKLAHOMA CITY OK
2052 2216 N.W. 23RD STREET OKLAHOMA CITY OK
2042 1107 S HARVARD AVE TULSA OK
2043 5804 S MEMORIAL DR TULSA OK
2044 7861 E. ADMIRAL PLACE TULSA OK
2045 6005 S PEORIA AVE TULSA OK
2046 10664 E 31ST ST TULSA OK
2022 3631 N. MACARTHUR BLVD WARR ACRES OK
3109 3110 SW CEDAR HILLS BLVD BEAVERTON OR
3118 2029 N.E. BURNSIDE RD. GRESHAM OR
3110 2722 NORTH LOMBARD PORTLAND OR
3112 7332 POWELL BLVD. PORTLAND OR
3113 16502 SE DIVISION PORTLAND OR
3121 13607 S. E. POWELL BLVD. PORTLAND OR
3128 12965 SW PACIFIC HWY. TIGARD OR
2409 1059 WASHINGTON AVENUE CARNEGIE GREENTREE PA
2420 2351 NOBLESTOWN ROAD #B-3 BOROUGH PA
2404 128 CHARTIERS AVE MCKEES ROCKS PA
2401 1701 LINCOLN HWY NORTH VERSAILLES PA
2403 21 YOST BLVD., SUITE 132 PITTSBURG PA
2405 6401 PENN AVENUE PITTSBURGH PA
2407 4528 LIBERTY AVENUE PITTSBURGH PA
2410 722-R PENN AVENUE PITTSBURGH PA
2411 100 FORBES AVENUE, #115 PITTSBURGH PA
Schedule II to Perfection Certificate
2413 2101 PENN AVENUE PITTSBURGH PA
2416 7773 MCKNIGHT ROAD PITTSBURGH PA
2418 206 FIFTH AVENUE PITTSBURGH PA
2421 2020 E. CARSON STREET PITTSBURGH PA
2422 710 E. WARRINGTON AVE. E PITTSBURGH PA
2423 1922 SPRING GARDEN AVE PITTSBURGH PA
2406 7404 CHURCH STREET SWISSVALE PA
911 6432 K TWO KNOTCH ROAD COLUMBIA SC
912 2300-C TAYLOR STREET COLUMBIA SC
922 1520 BROAD RIVER ROAD COLUMBIA SC
928 1038 N PLEASANTBURG DR GREENVILLE SC
959 1259 - BS PLEASANTBURG GREENVILLE SC
960 606 1/2 EDGEFIELD RD NORTH AUGUSTA SC
930 1081 JOHN C. CALHOUN DR ORANGEBURG SC
968 762 CHERRY ROAD ROCK HILL SC
914 418 WEST MAIN STREET SPARTANBURG SC
924 1420 KNOX ABBOTT DR WEST COLUMBIA SC
2104 2139 LAMAR AVE. MEMPHIS TN
2105 3310 JACKSON AVE. MEMPHIS TN
2107 5169 WINCHESTER ROAD MEMPHIS TN
2109 1631 POPLAR AVENUE MEMPHIS TN
2117 1330 E SHELBY DR MEMPHIS TN
2118 1979 S 3RD ST MEMPHIS TN
2119 2117 SYCAMORE VIEW RD MEMPHIS TN
2125 3102 AUSTIN PEAY HWY MEMPHIS TN
2131 4899 SUMMER AVE MEMPHIS TN
2134 4085 AMERICAN WAY MEMPHIS TN
2140 416 E. CRUMP BLVD MEMPHIS TN
2141 1787 S. THIRD STREET MEMPHIS TN
2142 1391 N. HOLLYWOOD MEMPHIS TN
2143 2242 LAMAR AVE MEMPHIS TN
2144 32 S. SECOND MEMPHIS TN
2145 3174 SUMMER AVE MEMPHIS TN
2146 4221 ELVIS PRESLEY BLVD MEMPHIS TN
2147 3201 S. THIRD STREET MEMPHIS TN
2148 2989 LAMAR AVE MEMPHIS TN
2149 1414 GETWELL SUITE# 101 MEMPHIS TN
2150 1386 ELVIS PRESLEY MEMPHIS TN
2151 3979 JACKSON AVE MEMPHIS TN
2152 3394 WATKINS MEMPHIS TN
2153 1609 MADISON MEMPHIS TN
2154 3317 WINCHESTER MEMPHIS TN
2155 3858 E. SHELBY DR. MEMPHIS TN
Schedule II to Perfection Certificate
2156 3109 S. PERKINS MEMPHIS TN
2157 5820 WINCHESTER MEMPHIS TN
2158 5129 YALE RD. MEMPHIS TN
2159 2628 FRAYSER BLVD MEMPHIS TN
2160 7444 WINCHESTER MEMPHIS TN
2123 4985 NAVY ROAD MILLINGTON TN
2112 5513 CHARLOTTE AVENUE NASHVILLE TN
2113 1143 GALLATIN ROAD NASHVILLE TN
2114 3417 NOLENSVILLE ROAD NASHVILLE TN
2115 367 HARDING PL STE C NASHVILLE TN
2116 717 CRAIGHEAD STREET NASHVILLE TN
2120 2012 S HAMILTON RD NASHVILLE TN
2122 3606 GALLATIN PIKE NASHVILLE TN
352 14320 MARSH LANE ADDISON TX
547 1132 E. MAIN ALICE TX
1376 544 W. GREENVILLE AVE ALLEN TX
330 604 W RANDOL MILL ROAD ARLINGTON TX
331 2243 S COOPER ST ARLINGTON TX
342 2230 N. COLLINS ST ARLINGTON TX
357 4801 S COOPER ST ARLINGTON TX
398 2544 E ABRAM ST ARLINGTON TX
1301 1509 NEW YORK AVENUE ARLINGTON TX
1335 934 N COLLINS ST ARLINGTON TX
1356 4801 LITTLE ROAD ARLINGTON TX
1369 2501 E. MAYFIELD RD. ARLINGTON TX
550 5341 CAMERON ROAD AUSTIN TX
551 730 W. STASSNEY LANE #150 AUSTIN TX
552 10205 N. LAMAR #107 AUSTIN TX
553 8728 B RESEARCH BLVD AUSTIN TX
554 2425 EAST 7TH STREET AUSTIN TX
555 5300 N.LAMAR BLVD. #101 AUSTIN TX
558 8501 BURNET ROAD, STE. C AUSTIN TX
559 9411 DESSAU ROAD AUSTIN TX
562 7408-A CAMERON ROAD AUSTIN TX
563 517 W. OLTORF ST. AUSTIN TX
565 5332 MANCHACA RD. AUSTIN TX
567 2217 EAST RIVERSIDE DRIVE AUSTIN TX
488 3634 GARTH ROAD BAYTOWN TX
495 3010 GARTH ROAD BAYTOWN TX
1480 4611 GARTH ROAD BAYTOWN TX
319 1401 BROWN TRAIL BEDFORD TX
351 3302 HARWOOD RD BEDFORD TX
366 383 EAST PIPELINE ROAD BEDFORD TX
Schedule II to Perfection Certificate
1387 2248 CENTRAL DR BEDFORD TX
1439 5214 BELLAIRE BLVD BELLAIRE TX
1393 9475 BENBROOK BLVD BENBROOK TX
1459 905 PAREDES LINE ROAD BROWNSVILLE TX
1460 2921 BOCA CHICA BLVD BROWNSVILLE TX
479 3304 E 29TH ST BRYAN TX
1308 251 SOUTHWEST WILSHIRE BL BURLESON TX
328 1914 EAST BELTLINE ROAD CARROLLTON TX
353 2810 E. TRINITY MILLS RD. CARROLLTON TX
1305 2540 N JOSEY LN CARROLLTON TX
1380 2150 N. JOSEY LANE CARROLLTON TX
1372 100 N. RIDGEWAY CLEBURNE TX
1373 1607-A N. MAIN STREET CLEBURNE TX
1374 504-B HENDERSON STREET CLEBURNE TX
464 1136 W DALLAS ST CONROE TX
480 1217 N LOOP 336 WEST CONROE TX
541 5634-A WEBER STREET CORPUS CHRISTI TX
544 5425 PADRE ISLAND DRIVE CORPUS CHRISTI TX
545 3504 LEOPARD STREET CORPUS CHRISTI TX
548 1805 S. Padre Island Corpus Christi TX
1451 4130 AYERS ST CORPUS CHRISTI TX
1452 5145 EVERHART RD CORPUS CHRISTI TX
1453 3765 LEOPARD ST CORPUS CHRISTI TX
1455 3216 S. PORT AVENUE CORPUS CHRISTI TX
1456 1305 S. PORT AVENUE CORPUS CHRISTI TX
301 1604 ELM ST STE A DALLAS TX
308 1515 S BUCKNER BLVD DALLAS TX
310 2980 W. NORTHWEST HWY DALLAS TX
312 2643 S. HAMPTON ROAD DALLAS TX
315 3117 GRAND AVE DALLAS TX
323 3418 OAK LAWN AVE DALLAS TX
324 5111 GREENVILLE AVE. DALLAS TX
329 11355 HARRY HINES BLVD DALLAS TX
335 4003 W CAMP WISDOM RD DALLAS TX
338 3936 S. POLK ST DALLAS TX
345 2302 GUS THOMASSON RD DALLAS TX
348 12921 JUPITER ROAD DALLAS TX
354 9730 ABRAMS ROAD DALLAS TX
358 14902 PRESTON ROAD DALLAS TX
363 13519 MONTFORT DR DALLAS TX
376 4303 S LANCASTER RD DALLAS TX
377 10806 GARLAND ROAD DALLAS TX
380 1095 WYNNEWOOD VILLAGE SH DALLAS TX
Schedule II to Perfection Certificate
382 8224 PARK LANE DALLAS TX
384 1120 W CAMP WISDOM RD DALLAS TX
385 8010 SPRING VALLEY RD DALLAS TX
392 6526 SKILLMAN STREET DALLAS TX
396 5441 ALPHA ROAD DALLAS TX
397 4346 MAPLE AVE. DALLAS TX
399 9778 FOREST LANE DALLAS TX
1309 5920 SAMUELL BLVD DALLAS TX
1311 5628 LEMMON AVE DALLAS TX
1312 3520 N BUCKNER BLVD DALLAS TX
1318 17630 PRESTON ROAD DALLAS TX
1329 3714 W LEDBETTER DR DALLAS TX
1333 18110 MIDWAY DALLAS TX
1339 3306 W CAMP WISDOM RD DALLAS TX
1343 10201 LAKE JUNE ROAD DALLAS TX
1345 4498 S. MARSALIS AVENUE DALLAS TX
1353 2821 LIVE OAK STREET DALLAS TX
1360 17509 COIT RD DALLAS TX
1389 2231 W LEDBETTER DR DALLAS TX
1310 836 W UNIVERSITY DR DENTON TX
1363 2215 S. LOOP 288 DENTON TX
267 424 YARBROUGH SUITE A EL PASO TX
268 835 N. ZARAGOZA EL PASO TX
269 12135 MONTWOOD #103 EL PASO TX
282 8838 VISCOUNT EL PASO TX
283 8220 B DYER STREET EL PASO TX
284 4700 MONTANA ST. EL PASO TX
288 7500 N. MESA EL PASO TX
1202 1829 MONTANA EL PASO TX
1203 5501 DYER ST., B EL PASO TX
2211 9600 MONTANA EL PASO TX
2212 7138 ALAMEDA EL PASO TX
2213 1360 LEE TREVINO EL PASO TX
2214 1830 GEORGE DIETER #104 EL PASO TX
2216 9130 DYER STREET EL PASO TX
2217 5070 DONIPHAN, SUITE C EL PASO TX
388 1060 NORTH MAIN ST EULESS TX
1388 508 WEST EULESS BLVD EULESS TX
1332 2351 VALWOOD PARKWAY FARMERS BRANCH TX
313 4119 E LANCASTER AVE FORT WORTH TX
316 3204 N MAIN ST FORT WORTH TX
317 7100 WEST CAMP BOWIE BLVD FORT WORTH TX
318 3029 S. FREEWAY FORT WORTH TX
Schedule II to Perfection Certificate
346 3004 W. 7TH STREET FORT WORTH TX
359 3708 ALTA MESA BLVD FORT WORTH TX
360 9096 HIGHWAY 80 WEST FORT WORTH TX
372 1221 WOODHAVEN BLVD. FORT WORTH TX
1307 6334 MEADOWBROOK DRIVE FORT WORTH TX
1313 3905 EAST BELKNAP STREET FORT WORTH TX
1336 4749 E LANCASTER AVE FORT WORTH TX
1342 112 E. SEMINARY DRIVE FORT WORTH TX
1355 5820 CAMP BOWIE BLVD FORT WORTH TX
1366 2809 WEST BERRY STREET FORT WORTH TX
1367 3409 MANSFIELD HWY. FORT WORTH TX
1368 4750 BRYANT IRVIN FORT WORTH TX
1370 6213 GRANBURY RD FORT WORTH TX
1386 7824 SOUTH FWY 35 WEST FORT WORTH TX
1394 1918 EPHRIHAM AVE FORT WORTH TX
1377 8700 - A MAIN #110 FRISCO TX
1371 9324 Clifford St Ft. Worth TX
311 3504 W. WALNUT ST. GARLAND TX
334 903 NORTHWEST HWY GARLAND TX
350 3159 S GARLAND AVE GARLAND TX
390 512 SOUTH GARLAND AVE. GARLAND TX
1306 5606 BROADWAY BLVD GARLAND TX
1350 2102 NORTHWEST HWY GARLAND TX
1381 5255 George Bush Pkwy Garland TX
320 201 W. MAIN ST GRAND PRAIRIE TX
355 2905 ARKANSAS LANE GRAND PRAIRIE TX
356 506 E. AVENUE K GRAND PRAIRIE TX
367 1915 W TARRANT ROAD GRAND PRAIRIE TX
1351 410 E. PIONEER PARKWAY GRAND PRAIRIE TX
1302 205 N BARTON ST GRAPEVINE TX
314 3171 DENTON HIGHWAY HALTOM CITY TX
1347 5200 DENTON HWY HALTOM CITY TX
1461 623 W HARRISON AVE HARLINGEN TX
402 9690 MESA DR HOUSTON TX
404 1801 ELLA BLVD HOUSTON TX
409 2015 YALE STREET HOUSTON TX
410 5510 BELLAIRE BLVD HOUSTON TX
411 6883 SOUTH GESSNER RD HOUSTON TX
413 5616 W. TIDWELL DR HOUSTON TX
424 7917 WESTHEIMER ROAD HOUSTON TX
425 7518 RICHMOND AVENUE HOUSTON TX
426 6436 BELLAIRE BLVD HOUSTON TX
428 732 GREENS ROAD HOUSTON TX
Schedule II to Perfection Certificate
429 4507 FM 1960 RD W HOUSTON TX
431 7542 W.BELFORT STREET HOUSTON TX
432 11142 WESTHEIMER RD HOUSTON TX
434 1205 BAY AREA BLVD. HOUSTON TX
438 13946 WESTHEIMER RD HOUSTON TX
440 11843 BISSONNET ST HOUSTON TX
441 11103 BRIAR FOREST DR HOUSTON TX
442 13509 NORTHWEST FREEWAY HOUSTON TX
443 9301 BISSONNET HOUSTON TX
445 9 UVALDE ROAD HOUSTON TX
446 12331 FONDREN RD. HOUSTON TX
448 10944 FUQUA ST HOUSTON TX
449 9201 CULLEN BLVD. HOUSTON TX
453 3516 S SHEPHERD DR HOUSTON TX
454 203 WEST GREENS ROAD HOUSTON TX
455 10990 I-45 NORTH HOUSTON TX
456 1414 N. GESSNER DRIVE HOUSTON TX
458 13640 TOMBALL PARKWAY HOUSTON TX
460 4550 NORTH FWY HOUSTON TX
462 9790 FONDREN ROAD HOUSTON TX
463 8602 BROADWAY ST HOUSTON TX
465 8631 BEECHNUT ST HOUSTON TX
466 810 FM 1960 RD WEST HOUSTON TX
468 10008 GULF FREEWAY HOUSTON TX
471 5788 BINGLE ROAD HOUSTON TX
472 11890 WESTHEIMER RD HOUSTON TX
475 17430 NORTHWEST FRWY HOUSTON TX
477 2033 BINGLE RD HOUSTON TX
482 5806 BELLFORT ST HOUSTON TX
483 4502 GRIGGS RD HOUSTON TX
484 12603 MARKET ST. HOUSTON TX
486 6872 HARRISBURG BLVD HOUSTON TX
492 9150 MAIN ST. HOUSTON TX
497 11210 HEMPSTEAD HWY HOUSTON TX
498 9819 BISSONNET ST HOUSTON TX
499 2525 SOUTHWEST FREEWAY 59 HOUSTON TX
1401 13315 EAST FREEWAY HOUSTON TX
1402 6464 WEST LITTLE YORK RD HOUSTON TX
1404 4926 WASHINGTON AVE HOUSTON TX
1405 815 SOUTH 75TH ST. HOUSTON TX
1411 5201 RICHMOND AVE HOUSTON TX
1412 3967 SOUTH GESSNER RD HOUSTON TX
1414 7812 ALMEDA RD HOUSTON TX
Schedule II to Perfection Certificate
1417 4607 HIGHWAY 6 NORTH HOUSTON TX
1419 442 W LITTLE YORK RD HOUSTON TX
1420 8311 LONG POINT RD. HOUSTON TX
1421 6010 S. GESSNER DR. HOUSTON TX
1422 2904 MAGNUM RD. HOUSTON TX
1423 6239 WESTHEIMER RD HOUSTON TX
1424 6475 HILLCROFT ST. HOUSTON TX
1426 1019 DAIRY ASHFORD ST HOUSTON TX
1428 10804 SOUTH POST OAK RD HOUSTON TX
1429 6123 TELEPHONE ROAD HOUSTON TX
1433 9539 S. MAIN ST HOUSTON TX
1434 2001 FANNIN ST HOUSTON TX
1435 8304 BROADWAY ST HOUSTON TX
1436 14708 HIRAM CLARKE RD HOUSTON TX
1437 7614 CLAREWOOD DR HOUSTON TX
1440 7080 BISSONNET ST HOUSTON TX
1441 11401 N. FREEWAY HOUSTON TX
1444 12580 BELLAIRE BLVD HOUSTON TX
1448 2838 HIGHWAY 6 SOUTH HOUSTON TX
1449 3849 SOUTH SHAVER ST HOUSTON TX
1474 11918 WILCREST DR HOUSTON TX
1475 10434 RICHMOND AVENUE HOUSTON TX
1476 8708 SOUTH GESSNER DR HOUSTON TX
1477 8366 WESTHEIMER RD HOUSTON TX
1478 1029 HWY 6 NORTH HOUSTON TX
1481 928 E TIDWELL RD HOUSTON TX
1482 10959 FM 1960 RD WEST HOUSTON TX
1485 1811 Wirt Ave Houston TX
1487 10210 Beechnut St Houston TX
1489 16257 FM 529 Houston TX
1490 9262 FM 1960 West Houston TX
447 19767 HIGHWAY 59 HUMBLE TX
1410 3103 FM 1960 RD WEST HUMBLE TX
1408 2805 SAM HOUSTON AVE. HUNTSVILLE TX
1409 3011 HIGHWAY 30 WEST HUNTSVILLE TX
337 3658 NORTH BELTLINE RD IRVING TX
341 1409 N. BELTLINE ROAD IRVING TX
344 2001 W. AIRPORT FRWY IRVING TX
375 3317 WALNUT HILL LANE IRVING TX
389 1125 WEST 6TH STREET IRVING TX
1341 1901 E. IRVING BLVD IRVING TX
1362 2802 N.MACARTHUR BLVD IRVING TX
1486 1789 FRY RD. KATY TX
Schedule II to Perfection Certificate
1375 419 N. MAIN STREET KELLER TX
543 727 SO. 14TH STREET KINGSVILLE TX
1303 6304 JACKSBORO HIGHWAY LAKE WORTH TX
1354 3250 W PLEASANT RUN RD LANCASTER TX
586 2308 GUADALUPE LAREDO TX
587 500 W. CLATRON ROAD LAREDO TX
588 3502 SAN BERNARDO LAREDO TX
515 6893-A BANDERA ROAD LEON VALLEY TX
1319 1324 W. MAIN STREET LEWISVILLE TX
1357 1302 S. HWY 121 LEWISVILLE TX
1320 215 SOUTH HIGH STREET LONGVIEW TX
1359 1016 WEST LOOP 281 LONGVIEW TX
1391 2309 GILMER RD. LONGVIEW TX
1465 2109 N.10TH STREET MCALLEN TX
1467 630 S. 23RD STREET MCALLEN TX
1468 1001 SOUTH 10TH ST.,STE I MCALLEN TX
1471 2629 W PECAN BLVD. MCALLEN TX
1484 819 N 10TH ST MCALLEN TX
1390 401 S. CENTRAL EXPRESSWAY MCKINNEY TX
321 500 N. GALLOWAY AVE MESQUITE TX
395 3801 GUS THOMASSON RD MESQUITE TX
1316 1704 MILITARY PARKWAY MESQUITE TX
1330 3330 NORTH GALLOWAY AVE MESQUITE TX
1331 1900 OATES DR. MESQUITE TX
1472 102 W. 9TH STREET MISSION TX
581 115 HWY 35 SOUTH, STE 19 NEW BRAUNFELS TX
NORTH RICHLAND
1361 8405 HARWOOD ROAD HILLS TX
435 2619 RED BLUFF RD PASADENA TX
436 6848 SPENCER HWY PASADENA TX
481 1348 E SOUTHMORE AVE PASADENA TX
487 1213 E. MAIN ST PASADENA TX
1415 4010 FAIRMONT PARKWAY PASADENA TX
1443 3112 SPENCER HWY PASADENA TX
537 1420 WELLS BRANCH PKWY PFLUGERVILLE TX
1466 1101 N CAGE BLVD PHARR TX
386 2500 AVE. K PLANO TX
1344 1500 N CENTRAL EXPY PLANO TX
1491 6 Porterwood Center Porter TX
546 1508 WILDCAT DRIVE PORTLAND TX
378 800 E ARAPAHO RD RICHARDSON TX
393 105 S CENTRAL EXPRESSWAY RICHARDSON TX
564 2541 SO. INTERSTATE HWY35 ROUND ROCK TX
Schedule II to Perfection Certificate
501 9910 SAN PEDRO SAN ANTONIO TX
502 6804 MILITARY DRIVE WEST SAN ANTONIO TX
503 8458 FREDERICKSBURG SAN ANTONIO TX
504 6998 ZARZAMORA SAN ANTONIO TX
505 145 EAST COMMERCE SAN ANTONIO TX
507 1308 AUSTIN HIGHWAY SAN ANTONIO TX
509 4263 NORTHWEST LOOP 410 SAN ANTONIO TX
510 828 S.W. MILITARY DR SAN ANTONIO TX
511 933 S.W.W. WHITE ROAD SAN ANTONIO TX
512 803 CASTROVILLE ROAD SAN ANTONIO TX
513 534 NORTH NEW BRAUNFELS SAN ANTONIO TX
516 4447 FREDERICKSBURG RD SAN ANTONIO TX
517 6900 SAN PEDRO AVENUE SAN ANTONIO TX
518 3678 B. CULEBRA SAN ANTONIO TX
519 414 S.NEW BRAUNFELS SAN ANTONIO TX
521 827 SAN PEDRO AVENUE SAN ANTONIO TX
522 11751 BLANCO ROAD SAN ANTONIO TX
523 8248-1 MARBACH ROAD SAN ANTONIO TX
525 1960 SW MILITARY DR SAN ANTONIO TX
526 4931 WALZEM ROAD SAN ANTONIO TX
527 8515 PERRIN BEITEL ROAD SAN ANTONIO TX
529 4877 W. COMMERCE SAN ANTONIO TX
531 5836-2 BABCOCK RD. SAN ANTONIO TX
532 6003 SOUTH IH-35 SAN ANTONIO TX
533 4802 RITTIMAN ROAD SAN ANTONIO TX
534 2501 BANDERA ROAD SAN ANTONIO TX
535 3815 BLANCO ROAD SAN ANTONIO TX
536 13900 NACOGDOCHES ROAD SAN ANTONIO TX
538 13410 U.S. 281 NORTH #102 SAN ANTONIO TX
540 6750 INGRAM ROAD SAN ANTONIO TX
568 906 BANDERA ROAD SAN ANTONIO TX
580 5951 INGRAM ROAD SAN ANTONIO TX
582 805 W. HILDEBRAND SAN ANTONIO TX
583 1443 S.W. MILITARY SAN ANTONIO TX
584 231 SAN PEDRO SAN ANTONIO TX
585 3310 S. ZARZAMORA SAN ANTONIO TX
590 11600 SH 16 NORTH #118 SAN ANTONIO TX
591 2102 GOLIAD RD, SUITE 1 SAN ANTONIO TX
592 2864 THOUSAND OAKS SAN ANTONIO TX
1432 18553 KUYKENDAHL RD SPRING TX
1442 2209 S MAIN ST STAFFORD TX
473 1400 GRAHAM DR TOMBALL TX
1317 4215 SOUTH BROADWAY AVE TYLER TX
Schedule II to Perfection Certificate
1321 2101 WEST GENTRY PARKWAY TYLER TX
1392 319 E. FRONT STREET TYLER TX
530 1918 PAT BOOKER RD. UNIVERSAL CITY TX
1457 1602 N. LAURENT ST. VICTORIA TX
381 6245 RUFE SNOW DR WATAUGA TX
1413 100 EAST NASA ROAD 1 WEBSTER TX
1469 1025 N. TEXAS BLVD WESLACO TX
1352 1700 S. CHERRY LANE WHITE SETTLEMENT TX
1446 202 SAWDUST RD WOODLANDS TX
1378 401 - B HIGHWAY 78 WYLIE TX
630 508-A S. VAN DORN STREET ALEXANDRIA VA
683 2254 HUNTINGTON AVENUE ALEXANDRIA VA
684 4121 MT. VERNON AVENUE ALEXANDRIA VA
639 311 N. GLEBE ROAD ARLINGTON VA
1611 1333-2 Poindexter Chesapeake VA
633 6190 ARLINGTON BOULEVARD FALLS CHURCH VA
644 5624 COLUMBIA PIKE FALLS CHURCH VA
1605 3579 PLANK ROAD FREDRICKSBURG VA
694 3010 WEST MERCURY BLVD HAMPTON VA
942 3819 KECOUGHTAN AVENUE HAMPTON VA
926 2154-A WARDS ROAD LYNCHBURG VA
690 8815 CENTERVILLE ROAD MANASSAS VA
695 8337 SUDLEY ROAD MANASSAS VA
933 72 COLONY ROAD NEWPORT NEWS VA
940 ▇▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
941 ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
939 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
943 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
946 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
1602 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
1608 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
1610 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
1613 720-2 (A) Church St Norfolk VA
935 3844 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ PORTSMOUTH VA
938 4213 PORTSMOUTH PORTSMOUTH VA
917 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
918 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
934 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
947 3636 VIRGINIA BEACH BLVD VIRGINIA BEACH VA
1601 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
1607 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
626 1964 ▇▇▇▇▇▇ ▇▇▇▇▇▇ SQUARE WOODBRIDGE VA
3123 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Schedule II to Perfection Certificate
3101 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇.▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
3134 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇
3107 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
3124 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Corporate Office
1231 Greenway Drive, Irving TX
Suite 600
Region Offices
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
402
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
300
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇
C
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
510
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
118
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Dr, Suite 104
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
210
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
420
Schedule II to Perfection Certificate
SCHEDULE III
OTHER NAMES
See Schedule 3.14 to the Credit Agreement
Schedule III to Perfection Certificate
SCHEDULE IV
OUTSIDE LOCATIONS OF COLLATERAL
See Schedule 3.15(d)(iii) to the Credit Agreement
Schedule IV to Perfection Certificate
SCHEDULE V
INSTRUMENTS AND SECURITIES
FACE AMOUNT OF INSTRUMENT
LOAN PARTY'S NAME AND ADDRESS LOCATION OF SECURITY OR INSTRUMENT TYPE OF SECURITY OR INSTRUMENT OR VALUE OF SECURITY
----------------------------- ---------------------------------- ------------------------------ -------------------------
Ace Cash Express, Inc. Company' possession Note (Sale of Stores) $408,000
Ace Cash Express, Inc. Administrative Agent various daily investments with fluctuating
Administrative Agent
Schedule V to Perfection Certificate
SCHEDULE VI
INTELLECTUAL PROPERTY
Trademark Collateral
See Schedule 3.15(c) to the Credit Agreement
SCHEDULE VI
INTELLECTUAL PROPERTY (CONT'D)
Patents Collateral
See Schedule 3.15(d) to the Credit Agreement
Schedule VI to Perfection Certificate
SCHEDULE VII
DEPOSIT ACCOUNTS
See Schedule 3.15(d)(i) to the Credit Agreement
Schedule VII to Perfection Certificate
SCHEDULE VIII
UCC FILING JURISDICTIONS
LOAN PARTY'S NAME AND ADDRESS FILING OFFICE(S) AND STATE
----------------------------- --------------------------
Ace Cash Express, Inc. Texas
Check Express, Inc. Florida
Check Express Florida, Inc. Florida
Check Express Finance, Inc. Florida
Check Express South Carolina, Inc. Florida
Check Express USA, Inc. Florida
Check-X-Change Corporation California
Q. C. & G. Financial, Inc. Arizona
Public Currency, Inc. California
Schedule VIII to Perfection Certificate
SCHEDULE 1
Pricing Grid
Applicable Margin for Applicable Margin for Applicable Margin for
Debt to EBITDA Ratio LIBO Rate Loans ABR Loans Reference Rate Loans
-------------------- --------------------- --------------------- --------------------
= or > 2.25x 3.25% per annum 2.25% per annum 3.25% per annum
< 2.25x = or > 2.00x 3.00% per annum 2.00% per annum 3.00% per annum
< 2.00x = or > 1.75x 2.75% per annum 1.75% per annum 2.75% per annum
< 1.75x = or > 1.50x 2.50% per annum 1.50% per annum 2.50% per annum
< 1.50x 2.25% per annum 1.25% per annum 2.25% per annum
SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
LC Number Beneficiary Amount Maturity Date
--------- ----------- ------ -------------
359386 Lumbermen's Mutual Casualty Co. $ 1,087,000 July 18, 2005*
499129 Zurich American Insurance Co. $ 577,000 October 01, 2004*
----------------------
* The Existing Letter of Credit automatically renews according to the terms
thereof
SCHEDULE 2.01(a)
Revolving Credit Commitments
LENDER REVOLVING CREDIT COMMITMENT PERCENTAGE
------ --------------------------- ----------
▇▇▇▇▇ Fargo Bank, National Association $ 21,000,000 15.000000000%
JPMorgan Chase Bank $ 16,275,000 11.625000000%
US Bank National Association $ 14,350,000 10.250000000%
Bank of America, N.A. $ 12,600,000 9.000000000%
Union Bank of California, N.A. $ 12,600,000 9.000000000%
KeyBank National Association $ 12,600,000 9.000000000%
Southwest Bank of Texas, N.A. $ 9,975,000 7.125000000%
First American Bank SSB $ 9,975,000 7.▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ 9,975,000 7.▇▇▇▇▇▇▇▇▇%
National City Bank $ 7,700,000 5.500000000%
Texas Capital Bank National Association $ 7,700,000 5.500000000%
RZB Finance, LLC $ 5,250,000 3.750000000%
---------------- ------------
TOTAL $ 140,000,000.00 100%
================ ============
SCHEDULE 2.01(b)
Seasonal Revolving Credit Commitments
SEASONAL REVOLVING
LENDER COMMITMENT PERCENTAGE
------ ------------------ ----------
▇▇▇▇▇ Fargo Bank, National Association $ 9,000,000 15.000000000%
JPMorgan Chase Bank $ 6,975,000 11.625000000%
US Bank National Association $ 6,150,000 10.250000000%
Bank of America, N.A. $ 5,400,000 9.000000000%
Union Bank of California, N.A. $ 5,400,000 9.000000000%
KeyBank National Association $ 5,400,000 9.000000000%
Southwest Bank of Texas, N.A. $ 4,275,000 7.125000000%
First American Bank SSB $ 4,275,000 7.▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ 4,275,000 7.▇▇▇▇▇▇▇▇▇%
National City Bank $ 3,300,000 5.500000000%
Texas Capital Bank National Association $ 3,300,000 5.500000000%
RZB Finance, LLC $ 2,250,000 3.750000000%
--------------- -----------
TOTAL $ 60,000,000.00 100%
=============== ===========
SCHEDULE 2.02(a)
Domestic Lending Office
Unless otherwise indicated, each Lender's Domestic Lending Office is the same as
its address for notices.
1. ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
2. JPMorgan Chase Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
3. Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ Honey
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
4. US Bank National Association
One ▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
5. Union Bank of California, N.A.
Credit Administrative/Operations/LC Contact:
------ ------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
6. KeyBank National Association
Credit Administrative/Operations/LC Contact:
------ ------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 127 Public Square
Preston Commons Tower West Mail code OH-01-27-0847
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Temple ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/2576 Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/0412
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
7. Southwest Bank of Texas, N.A.
Notice Address Domestic Lending Office
-------------- -----------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
8. First American Bank SSB ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇. ▇▇▇▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
9. Texas Capital Bank National Association
Notice Address Domestic Lending Office
-------------- -----------------------
6060 N. Central Expwy #▇▇▇ ▇/▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. #▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
10. National City Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11. The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
12. RZB Finance LLC
Credit
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Funding Notices
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE 2.02(b)
Eurodollar Lending Office
1. ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
2. JPMorgan Chase Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
3. Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ Honey
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
4. US Bank National Association
One ▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
5. Union Bank of California, N.A.
Credit Administrative/Operations/LC Contact:
------ ------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
6. Key Bank National Association
Credit Administrative/Operations/LC Contact:
------ ------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 127 Public Square
Preston Commons Tower West Mail code OH-01-27-0847
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Temple ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/2576 Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/0412
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
7. Southwest Bank of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
8. First American Bank SSB
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇. ▇▇▇▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
9. Texas Capital Bank National Association
c/o ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. #▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
10. National City Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11. The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
12. RZB Finance LLC
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE 3.06
LITIGATION
3.06(a)(i)
o The Borrower has supplied information regarding certain of its payday
loans to the Federal Trade Commission ("FTC") in response to the FTC's
letter dated December 12, 2002. Borrower has not received any further
inquiries on this information from the FTC.
3.06(c)
o Settlement Agreement between Ace Cash Express, Inc. and the Ohio
Division of Financial Institutions dated as of December 31, 2002 -- See
Borrower's Form 8-K dated as of December 20, 2002 filed with the
Securities and Exchange Commission ("SEC") on January 6, 2003
o Final Order of the State of Florida, Department of Banking and Finance,
Division of Securities and Finance dated December 30, 2002 In re Ace
Cash Express, Inc. d/b/a Ace America's Cash Express -- See Borrower's
Form 8-K dated as of December 20, 2002 filed with the SEC on January 6,
2003
o Consent Judgment dated December 13, 2002 in State of North Carolina ex
rel. ▇▇▇ ▇▇▇▇▇▇, Attorney General and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.,
Commissioner of Banks v. Ace Cash Express, Inc. -- See Borrower's Form
10-Q for the quarterly period ended December 31, 2002 filed with the
SEC on February 14, 2003
o Consent Order In the Matter of Ace Cash Express, Inc., Agent and Bank
Service Provider for Goleta National Bank, dated October 25, 2002 - See
Borrower's Form 8-K dated as of October 25, 2002 filed with the SEC on
November 5, 2002
o Consent Decree dated May 6, 2002 -- State of Colorado, ex rel. ▇▇▇
▇▇▇▇▇▇▇, Attorney General for the state of Colorado, and ▇▇▇▇▇ ▇. ▇▇▇▇,
Administrator, Uniform Consumer Credit Code v. Ace Cash Express, Inc.
-- See Borrower's Form 10-Q for the quarterly period ended March 31,
2002 filed with the SEC on May 15, 2002
o Agreed Final Judgment and Permanent Injunction in Western Union
Corporation v. Ace Cash Express, Inc., dated March 27, 1990 --
Injunction prohibiting the use of the slogan "We Do Western Union Only
Better" in connection with the promotion and advertisement of money
transfer services.
o Memorandum Opinion and Order dated December 11, 2003 and the Settlement
Agreement referenced therein -- ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Patruicia ▇▇▇▇▇
and ▇▇▇▇ ▇▇▇▇▇▇▇, for themselves and all others similarly situated v.
Ace Cash Express, Inc. and Goleta National Bank.
o From March 1998 through June 22, 2004, C. ▇▇▇▇▇▇ ▇▇▇▇ was the President
and Chief Operating Officer of Allegiance Telecom, Inc. which filed a
voluntary petition for reorganization under Chapter 11 of the U.S.
Bankruptcy Code in May 2003.
2
SCHEDULE 3.14
ORGANIZATION; SUBSIDIARIES
STATES AUTHORIZED TO
BORROWER JURISDICTION OF CONDUCT BUSINESS
INCORPORATION
----------------------- ----------------- ----------------------------
Ace Cash Express, Inc. Texas Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Washington DC
Florida
Georgia
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maryland
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Jersey
New Mexico
North Carolina
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
Tennessee
Texas
Utah
Vermont
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Wisconsin
Wyoming
District of Columbia
----------------------- ----------------- ------------------ ------------------ ------------------- ------------------
STATES
STATES AUTHORIZED TO
JURISDICTION OF CONDUCTING CONDUCT BUSINESS
NAME OF SUBSIDIARY INCORPORATION BUSINESS EQUITY OWNERSHIP TRADE NAMES
----------------------- ----------------- ------------------ ------------------ ------------------- ------------------
Check Express, Inc. Florida None Florida All outstanding None
shares of common
stock owned by
Borrower
CHECK EXPRESS Florida None Florida All outstanding None
FLORIDA, INC.
California shares of common
Georgia stock owned by
Ohio Check Express,
Texas Inc.
CHECK EXPRESS Florida None Florida All outstanding None
FINANCE, INC. shares of common
stock owned by
Check Express,
Inc.
CHECK EXPRESS SOUTH Florida Indiana Florida All outstanding None
CAROLINA, INC. South Carolina Indiana shares of common
South Carolina stock owned by
Check Express,
Inc.
Check Express USA, Florida None Florida All outstanding None
Inc. shares of common
stock owned by
Check Express,
Inc.
CHECK-X-CHANGE California None California All outstanding None
CORPORATION shares of common
stock owned by
Check Express,
Inc.
Q. C. & G. Arizona Texas Arizona All outstanding None
FINANCIAL, INC. Virginia Texas shares of common
Virginia stock owned by
Borrower
All outstanding
PUBLIC California California California shares of common None
CURRENCY, INC. stock owned by
Borrower
All membership
ACE Funding, LLC Delaware Texas Texas interests owned None
by Borrower
2
SCHEDULE 3.15(c)
INTELLECTUAL PROPERTY
TRADEMARKS
OWNER TRADEMARK NAME JURISDICTION APPLICATION REGISTRATION
STATUS NUMBER/
APPLICATION NO.
---------------------------- ------------------------------ --------------------- ----------------- ------------------
Ace Cash Express, Inc. A logo United States of Pending 76/577170
America
Ace Cash Express, Inc. A C E AMERICA'S CASH Mexico Registered 667241
EXPRESS
Ace Cash Express, Inc. A A C E AMERICA'S CASH United States of Registered 1,831,546
EXPRESS and design America
Ace Cash Express, Inc. A A-C-E AMERICA'S CASH Canada Registered TMA445484
EXPRESS and design
Ace Cash Express, Inc. ACE United States of Registered 2,155,964
America
Ace Cash Express, Inc. A A C E and design United States of Registered 1,806,389
America
Ace Cash Express, Inc. ACE AMERICA'S CASH Texas Registered 052565
EXPRESS and design
Ace Cash Express, Inc. ACE AMERICA'S CASH Texas Registered 052564
EXPRESS and design
Ace Cash Express, Inc. ACE AMERICA'S CASH Texas Registered 800191502
EXPRESS and design
Ace Cash Express, Inc. ACE CANADA'S CASH Canada Pending Serial No.
EXPRESS and design 1132776
Ace Cash Express, Inc. ACE CASH ADVANCE United States of Pending Serial No.
America 76/551032
Ace Cash Express, Inc. ACE CASH EXPRESS United States of Pending Serial No.
America 76/558903
Ace Cash Express, Inc. AFTER ALL... IT'S YOUR United States of Pending Serial No.
MONEY! America 76/490562
Ace Cash Express, Inc. AMERICA'S CASH United States of Pending Serial No.
ADVANCE America 76/524047
OWNER TRADEMARK NAME JURISDICTION APPLICATION REGISTRATION
STATUS NUMBER/
APPLICATION NO.
---------------------------- ------------------------------ --------------------- ----------------- ------------------
Ace Cash Express, Inc. AMERICA'S CASH EXPRESS United States of Pending Serial No.
America 76/601681
Ace Cash Express, Inc. AMERICA'S CASH EXPRESS and United States of Pending Serial No.
design America 76/601682
Ace Cash Express, Inc. CASH IN ON OUR CONVENIENCE United States of Registered 1,846,958
America
Ace Cash Express, Inc. CASH IN ON OUR CONVENIENCE United States of Registered 1,831,538
America
Ace Cash Express, Inc. CASH IN ON OUR CONVENIENCE United States of Registered 2,108,173
America
Ace Cash Express, Inc. CASH IS OUR MIDDLE NAME United States of Registered 2,318,222
America
Ace Cash Express, Inc. IT'S YOUR MONEY. WHY WAIT? United States of Pending Serial No.
America 76/491255
Ace Cash Express, Inc. MISCELLANEOUS DESIGN United States of Pending 76/576009
America
Check Express, Inc. CHECK EXPRESS United States of Registered 1,370,520
America
Check Express, Inc. CHECK EXPRESS Canada Registered TMA496291
Check Express, Inc. CHECK EXPRESS Mexico Pending 607629
Check Express, Inc. CHECK EXPRESS Mexico Registered 802071
Check Express, Inc. CHECK EXPRESS United States of Pending Serial No.
America 76/491366
Check Express, Inc. CHECK EXPRESS United States of Pending Serial No.
America 76/490563
Check Express, Inc. CHECK EXPRESS and design United States of Registered 1,476,206
America
Check Express, Inc. CHECK EXPRESS MONEY CENTERS Canada Registered TMA503892
and design
Check Express, Inc. CHECK EXPRESS MONEY CENTERS Mexico Registered 503683
and design
Check Express, Inc. CHECK EXPRESS MONEY CENTERS Mexico Registered 514567
and design
Check Express, Inc. EXPRESS and check design United States of Registered 1,489,647
America
2
OWNER TRADEMARK NAME JURISDICTION APPLICATION REGISTRATION
STATUS NUMBER/
APPLICATION NO.
---------------------------- ------------------------------ --------------------- ----------------- ------------------
Check Express, Inc. EXPRESS and check design United States of Registered 2,183,193
America
Check Express, Inc. EXPRESS and check design Canada Registered TMA532292
Check Express, Inc. EXPRESS and check design Mexico Registered 514566
Check Express, Inc. EXPRESS AND CHECK DESIGN Mexico Registered 789938
Check X Change Corporation CHECK-X-CHANGE United States of Registered 1,793,853
America
Check X Change Corporation X-CHANGE-CHECK-X-CHANGE and United States of Registered 1,374,191
design America
3
PATENT APPLICATIONS
Owner Title Filing Date Application No. Atty. Docket No.
----------------------------- --------------------------- -------------- ------------------ --------------------------
Ace Cash Express, Inc. Automated Method and 05/09/2002 10/142,351 300003-1001
System for Enrollment
Ace Cash Express, Inc. Check and Cash Dispensing 06/19/2002 10/175,584 300003-1002
Machine and Method
4
SCHEDULE 3.15(d)
DEPOSIT ACCOUNTS AND ARMORED COURIERS
(i) Deposit Accounts of Borrower: *
(ii) Deposit Accounts of Borrower's Subsidiaries (other than ACE Funding): *
(iii) Armored courier services that transport Collateral: *
(iv) Agreements with armored courier services that transport Collateral:
o Armored Car Service Agreement between Arkansas Armored Car
Service, L.L.C. and the Borrower
o Armored Car Service Agreement between Armored Transport Texas, Inc.
a/k/a AT Systems Southwest, Inc. and the Borrower
o Contract between Brink's Incorporated and the Borrower
o Armored Car Service Agreement between First Star Transport and the
Borrower
o Service Agreement between ▇▇▇▇▇▇ Fargo & Co. and the Borrower
o Agreement between MidFlorida Armored and the Borrower
o Agreement between Rochester Armored Car Co, Inc. and the Borrower
o Agreement between Triple D Security, Inc. and the Borrower
--------
(1) Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this
filing and filed separately with the Securities and Exchange Commission.
SCHEDULE 3.18
ENVIRONMENTAL
o None
SCHEDULE 6.01
EXISTING LIENS
JURISDICTION FILE DATE SECURED PARTY COLLATERAL
--------------------- -------------- ---------------------- ----------
California 4/28/97 State of California, Tax Lien
Employment Development
Department
SCHEDULE 6.02
SALE LEASEBACK TRANSACTIONS
o The Borrower may enter into sale and lease-back transactions for any
or all of the following properties:
o ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; and
o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇, ▇▇▇▇▇▇▇
1
SCHEDULE 6.03
EXISTING INDEBTEDNESS
o Deferred Payment Obligation represented by a promissory note in the
approximate principal amount of $108,000, payable to ARC Check Cashing,
Inc.
SCHEDULE 6.06
EXISTING LOANS AND ADVANCES
None
SCHEDULE 6.17
PERMITTED INVESTMENTS
o Promissory Note in the original principal amount of $406,000 payable
by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ representing a portion of the purchase price
of 3 stores
