EXHIBIT 10.1
SIXTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and entered into effective as of November 13, 2002 (the
"Effective Date") by and among ACE CASH EXPRESS, INC., a Texas corporation (the
"Borrower"), the lenders party to the Credit Agreement (as defined below)
(collectively, together with all successors and assigns, the "Lenders"), XXXXX
FARGO BANK TEXAS, NATIONAL ASSOCIATION, a national banking association, as agent
for the Lenders (the "Agent"), BANK OF AMERICA, N.A., a national banking
association, as syndication agent for the Lenders (the "Syndication Agent"),
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, formerly
known as FIRST UNION NATIONAL BANK ("Wachovia"), and JPMORGAN CHASE BANK, a New
York state banking corporation, formerly known as THE CHASE MANHATTAN BANK
("Chase"), both as managing agents for the Lenders (Wachovia and Chase, in such
capacities, are hereby referred to as the "Managing Agents") (collectively, the
Agent, the Syndication Agent and the Managing Agents are referred to as the
"Agents").
PRELIMINARY STATEMENTS
A. The Borrower, the Lenders and the Agents have entered into that
certain Amended and Restated Credit Agreement, dated as of November 9, 2000, as
amended by that certain Amendment to Amended and Restated Credit Agreement, by
and among the Borrower, the Lenders and the Agents, dated as of February 21,
2001, as further amended by that certain Second Amendment to Amended and
Restated Credit Agreement, by and among the Borrower, the Lenders and the
Agents, dated as of November 7, 2001, as further amended by that certain Third
Amendment to Amended and Restated Credit Agreement, by and among the Borrower,
the Lenders and the Agents, dated as of December 31, 2001, as further amended by
that certain Fourth Amendment to Amended and Restated Credit Agreement, by and
among the Borrower, the Lenders and the Agents, dated as of April 30, 2002, and
as further amended by the Fifth Amendment to Amended and Restated Credit
Agreement, by and among the Borrower, the Lenders and the Agents, dated as of
October 31, 2002 (as amended, the "Credit Agreement").
B. The Borrower has advised the Agent and the Lenders that the Borrower
desires to form a special purpose limited liability company or business trust
("ACE Funding"), as a wholly-owned subsidiary of the Borrower.
C. The Borrower, the Lenders and the Agents desire to amend the Credit
Agreement and the other Credit Documents as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
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AGREEMENT
ARTICLE I. DEFINITIONS
SECTION 1.02 Certain Defined Terms. Capitalized terms used in this
Amendment are used as defined in the Credit Agreement, as amended hereby, unless
otherwise stated.
ARTICLE II. AMENDMENT
SECTION 2.01 Amendment to Section 1.01; Amendment and Restatement of
Certain Defined Terms. Effective as of the Effective Date, the following
definitions contained in Section 1.01 of the Credit Agreement are hereby amended
and restated in their entirety to read as follows:
"Applicable Margin" shall mean the following percentages per
annum applicable to the following Types of Loans, which percentages
shall be added to the applicable interest rates for purposes of
calculating the interest rates payable to the Lenders, as more fully
described by Section 2.05.
ALTERNATE BASE REFERENCE
RATE APPLICABLE RATE APPLICABLE
TYPE OF LOANS MARGIN MARGIN
------------- --------------- ---------------
Revolving Credit Loan 3.50% 4.50%
Seasonal Revolving Credit Loan 4.00% N/A
"Available Commitment Amount" shall mean at any date of
determination (i) with respect to the Revolving Credit Commitment, the
Total Revolving Credit Commitment, minus the average daily unpaid
principal balance of the Revolving Credit Loans since the later to
occur of November 13, 2002 and the last date of payment of the
Commitment Fee with respect to the Revolving Credit Commitment, as
described in Section 2.06(a) hereof and (ii) with respect to the
Seasonal Revolving Credit Commitment, the Total Seasonal Revolving
Credit Commitment, minus the average daily unpaid principal balance of
the Seasonal Revolving Credit Loans since the later to occur of
November 13, 2002 and the last date of payment of the Commitment Fee
with respect to the Seasonal Revolving Credit Commitment, as described
in Section 2.06(a).
"Final Maturity Date" shall mean October 31, 2003.
"Fixed Rate" shall mean a fixed interest rate equal to fifteen
percent (15.0%) per annum.
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"Interest Payment Date" shall mean (a) with respect to any
Revolving Credit Loan that is an Alternate Base Loan, (i) the last
Business Day of each month commencing on the month following the
Closing Date and (ii) the Revolving Credit Termination Date, (b) with
respect to any Seasonal Revolving Credit Loan that is an Alternate Base
Loan, (i) the last Business Day of each month commencing on the month
following the Closing Date and (ii) the Seasonal Revolving Credit
Termination Date, (c) with respect to any Reference Rate Loan, (i) the
last Business Day of each month commencing on the month following the
Closing Date and (ii) the Revolving Credit Termination Date and (d)
with respect to any Fixed Rate Loan, (i) the last Business Day of each
month commencing on the month following the Closing Date and (ii) the
Term Loan Termination Date.
"Interest Period" shall mean, as to any (i) Alternate Base
Loan, the period commencing on the date of such Alternate Base Loan and
ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month
that is one (1) month thereafter, as the Borrower may elect with
respect to its Alternate Base Loans; and (ii) Reference Rate Loan, the
period commencing on the date of such Reference Rate Loan and ending on
the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is one
(1) month thereafter, as the Borrower may elect with respect to its
Reference Rate Loans; provided, however, that (a) if an Interest Period
would otherwise end on a day that is not 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, (b) no Interest Period shall (i) with respect
to a Term Loan, end later than the Term Loan Termination Date, (ii)
with respect to a Revolving Credit Loan, end later than the Revolving
Credit Loan Termination Date, and (iii) with respect to a Seasonal
Revolving Credit Loan, end later than the Seasonal Revolving Credit
Loan Termination Date, and (c) interest shall accrue from and including
the first day of an Interest Period to but excluding the last day of
such Interest Period.
"Loan" shall mean any Term Loan, any Revolving Credit Loan or
any Seasonal Revolving Credit Loan.
"Notes" shall mean, collectively, the Term Notes, the
Revolving Credit Notes and the Seasonal Revolving Credit Notes of the
Borrower, executed and delivered as provided in Section 2.04 hereof.
"Revolving Credit Notes" shall mean the Amended and Restated
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.
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"Total Commitment" shall mean the sum of the Lenders' Total
Term Loan Commitment, Total Revolving Credit Commitment and Total
Seasonal Revolving Credit Commitment, as the same may be terminated or
reduced from time to time in accordance with the provisions of this
Agreement.
SECTION 2.02 Amendment to Section 1.01; Addition of Certain Defined
Terms. Effective as of the date hereof, the following definitions shall be added
to Section 1.01 of the Credit Agreement in alphabetical order:
"ACE Funding" shall mean a special purpose limited liability
company or business trust to be formed by the Borrower after November
13, 2002 as a wholly-owned Subsidiary of the Borrower.
"Contingency Fee" shall have the meaning assigned to such term
in Section 2.06(c) hereof.
"Contingency Fee Payments" shall have the meaning assigned to
such term in Section 2.06(c) hereof.
"ACE Funding Lender" shall have the meaning assigned to such
term in Section 6.21 hereof.
"Seasonal Revolving Credit Commitment" shall mean, with
respect to any Seasonal Revolving Credit Lender, the Seasonal Revolving
Credit Commitment of such Lender as set forth in Schedule 2.01(c)
annexed hereto, as the same may be terminated or reduced from time to
time in accordance with the provisions of this Agreement.
"Seasonal Revolving Credit Lender" shall mean any Lender 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 K
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, 2003 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 have the meaning assigned to such
term in Section 5.19 hereof.
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"Term Notes" shall mean the Second Amended and Restated Term
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.
"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.
"Usage Period" shall mean the period from January 7 (or the
preceding Business Day if January 7 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.
SECTION 2.03 Amendment to Section 1.01; Deletion of Certain Defined
Terms. Effective as of the date hereof, the definitions of "Eurodollar Lending
Office", "Eurodollar Loan" and "Term Loan Note" shall be deleted from Section
1.01 of the Credit Agreement.
SECTION 2.04 Amendment to Section 2.01(d). Effective as of the
Effective Date, Section 2.01(d) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(d) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender, severally
and not jointly, agrees to make Revolving Credit Loans to the Borrower,
at any time and from time to time, the Borrower having the right to
borrow, repay and reborrow, from the Closing Date to the Revolving
Credit Termination Date, in an aggregate principal amount at any time
outstanding not to exceed the amount of such Lender's Revolving Credit
Commitment set forth opposite its name in Schedule 2.01(b) hereto.
Notwithstanding the foregoing, at no time shall the sum of (i) the
aggregate principal amount of Revolving Credit Loans outstanding and
(ii) the aggregate principal amount of Seasonal Revolving Credit Loans
outstanding, exceed the Borrowing Base then in effect. If the total
unpaid amount of the Revolving Credit Loans and the Seasonal Revolving
Credit Loans at any time exceeds the Borrowing Base then in effect,
Borrower shall make a paydown on the Seasonal Revolving Credit Loans
(and, to the extent necessary, the Revolving Credit Loans) in an amount
sufficient to reduce the total unpaid balance of the Seasonal Revolving
Credit Loans and Revolving Credit Loans to an amount no greater than
the Borrowing Base. Such mandatory paydown shall be accompanied by all
accrued and unpaid interest on the amount prepaid."
SECTION 2.05 Amendment to Section 2.01; Addition of Section 2.01(e).
Effective as of the Effective Date, a new Section 2.01(e) is hereby added to the
Credit Agreement to read as follows:
"(e) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Seasonal
Revolving Credit
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Lender, severally and not jointly, agrees to make Seasonal Revolving
Credit Loans to the Borrower, at any time and from time to time, the
Borrower having the right to borrow, repay and reborrow, from December
1, 2002, 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 Schedule 2.01(c) hereto. The Seasonal Revolving
Credit Loans shall be subject to the Borrowing Base and shall not be
made if any such Seasonal Revolving Credit Loan would cause the unpaid
amount of the Seasonal Revolving Credit Loans, together with the unpaid
amount of all of the Revolving Credit Loans then outstanding, to exceed
the Borrowing Base then in effect. The Seasonal Revolving Credit Loans
shall be made on, and subject to, the same terms and conditions as the
Revolving Credit Loans, and the Seasonal Revolving Credit Commitments
shall be subject to reduction or termination upon the same terms and
conditions as the Revolving Credit Commitments, in each case to the
extent not expressly provided otherwise in this Agreement. Any payments
made by the Borrower to the Agent during a period when any Seasonal
Revolving Credit Loans are outstanding shall be applied first to
accrued and unpaid interest on the portion of the Seasonal Revolving
Credit Loans, if any, that exceeds $35,000,000 in the aggregate, second
to accrued and unpaid interest on the remaining portion of the Seasonal
Revolving Credit Loans, third to the unpaid principal amount of any
Seasonal Revolving Credit Loans, if any, in excess of $35,000,000,
fourth to the unpaid principal amount of the remaining Seasonal
Revolving Credit Loans, and thereafter in accordance with the terms of
this Agreement."
SECTION 2.06 Amendment to Section 2.02(b). Effective as of the
Effective Date, Section 2.02(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) Revolving Credit Loans and Seasonal Revolving Credit
Loans shall be made ratably by the Lenders in accordance with their
respective Revolving Credit Commitments and Seasonal Revolving Credit
Commitments; provided, however, that the failure of any Lender to make
any Loan shall not in itself relieve any other Lender of its obligation
to lend hereunder. Term Loans shall be made by the Lenders against
delivery to each Lender of one (1) Term Note, payable to the order of
such Lender, as referred to in Section 2.04 hereof. All Revolving
Credit Loans shall be made by the Lenders against delivery to each
Lender of one (1) Revolving Credit Note, payable to the order of such
Lender, as referred to in Section 2.04 hereof. All Seasonal Revolving
Credit Loans shall be made by the Lenders against delivery to each
Lender of one (1) Seasonal Revolving Credit Note, payable to the order
of such Lender, as referred to in Section 2.04 hereof."
SECTION 2.07 Amendment to Section 2.03. Effective as of the Effective
Date, Section 2.03 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
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"SECTION 2.03. Notice of Revolving Credit Loans and Seasonal
Revolving Credit Loans. The Borrower shall give the Agent irrevocable
written or facsimile notice (promptly confirmed in writing) of each
borrowing to be made by the Borrower (including, without limitation, a
conversion as permitted by Section 2.02(e) hereof) not later than (i)
8:00 a.m., San Francisco, California time, the Business Day of a
proposed Revolving Credit Loan consisting of a Reference Rate Loan
borrowing or any Reference Rate Loan conversion and (ii) 8:00 a.m., San
Francisco, California time, the Business Day of a proposed Revolving
Credit Loan or Seasonal Revolving Credit Loan consisting of an
Alternate Base Loan borrowing or any Alternate Base Loan conversion.
Such notice shall be in substantially the form of Exhibit I 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) specify whether the Loans then being requested are to be
Alternate Base Loans or Reference Rate Loans, (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 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 Alternate Base Loans.
Notwithstanding anything contained in this Agreement to the contrary,
(i) Revolving Credit Loans shall only be, and shall only be convertible
into, Alternate Base Loans or Reference Rate Loans, (ii) Term Loans
shall only be Fixed Rate Loans, and (iii) Seasonal Revolving Credit
Loans shall only be, and shall only be convertible into, Alternate Base
Loans. The 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."
SECTION 2.08 Amendment to Section 2.04(a). Effective as of the
Effective Date, Section 2.04(a) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) All Term Loans made by a Lender to the Borrower shall be
evidenced by a single Term Note duly executed by the Borrower, dated as
of November 13, 2002, in substantially the form of Exhibit A hereto,
delivered by the Borrower and payable to such Lender in a principal
amount equal to such Lender's Term Loan Commitment on such date. All
Revolving Credit Loans made by a Lender to the Borrower shall be
evidenced by a single Revolving Credit Note, duly executed by the
Borrower, dated as of November 13, 2002, in substantially the form of
Exhibit B hereto, delivered by the Borrower and payable to such Lender
in a principal amount equal to such Lender's Revolving Credit
Commitment on such date. All Seasonal Revolving Credit Loans made by a
Lender to the Borrower shall be evidenced by a single Seasonal
Revolving Credit
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Note, duly executed by the Borrower, dated as of November 13, 2002, in
substantially the form of Exhibit K hereto, delivered by the Borrower
and payable to such Lender in a principal amount equal to the highest
principal amount at any time outstanding of such Lender's Seasonal
Revolving Credit Commitment as set forth on Schedule 2.01(c)."
SECTION 2.09 Amendment to Section 2.04(b). Effective as of the
Effective Date, Section 2.04(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) Each Revolving Credit Note shall bear interest from its
date on the outstanding principal balance thereof, as provided in
Section 2.05 hereof. The outstanding balance of each Revolving Credit
Loan, as evidenced by any such Revolving Credit Note, shall mature and
be due and payable on the Revolving Credit Termination Date. Each
Seasonal Revolving Credit Note shall bear interest from its date on the
outstanding principal balance thereof, as provided in Section 2.05
hereof. The outstanding balance of each Seasonal Revolving Credit Loan,
as evidenced by any such Seasonal Revolving Credit Note, shall mature
and be due and payable on the Seasonal Revolving Credit Termination
Date."
SECTION 2.10 Amendment to Section 2.04(c). Effective as of the
Effective Date, Section 2.04(c) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(c) Each Term Note shall bear interest from its date on the
outstanding principal balance thereof as provided in Section 2.05
hereof. The Borrower shall make aggregate principal payments in respect
of the Term Notes on the dates and in the amounts set forth below.
Date Principal Payments
---- ------------------
January 31, 2003 $ 500,000
February 28, 2003 $ 5,750,000
March 31, 2003 and on the last Business Day $ 250,000
of each calendar month thereafter through
and including the last Business Day of the
calendar month immediately preceding the
Term Loan Termination Date
The aggregate unpaid principal balance of each Term Loan, as evidenced
by such Term Note, shall mature and be due and payable on the Term Loan
Termination Date."
SECTION 2.11 Amendment to Section 2.05. Effective as of the Effective
Date, Section 2.05 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
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"SECTION 2.05 Interest on Loans.
(a) Subject to the provisions of Section 2.08 and Section 9.08
hereof, each Alternate Base 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 9.08
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.
(c) Subject to the provisions of Section 2.08 and Section 9.08
hereof, each Fixed Rate Loan shall bear interest at a rate per annum
equal to the Fixed Rate.
(d) Notwithstanding anything contained in this Agreement to
the contrary, (i) Revolving Credit Loans shall only be, and shall only
be convertible into, Alternate Base Loans or Reference Rate Loans, (ii)
Term Loans shall only be Fixed Rate Loans and (iii) Seasonal Revolving
Credit Loans shall only be, and shall only be convertible into,
Alternate Base Loans.
(e) Interest on each Loan shall be payable in arrears on each
applicable Interest Payment Date. Interest on each Loan shall be
computed based on the number of days elapsed in a year of 360 days. The
Agent shall determine each interest rate applicable to the Revolving
Credit Loans and shall promptly advise the Borrower and the Lenders of
the interest rate so determined."
SECTION 2.12 Amendment to Section 2.06. Effective as of the Effective
Date, Section 2.06 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"SECTION 2.06. Fees.
(a) The Borrower shall pay each Lender, through the Agent, its
pro rata share of a monthly commitment fee ("Commitment Fee") from
November 13, 2002 until the later to occur of the Revolving Credit
Termination Date and the Seasonal Revolving Credit Termination Date, in
an amount equal to: (i)(A) the Available Commitment Amount applicable
to the Revolving Credit Commitment during such month (or such shorter
period as may be applicable), multiplied by (B) the Applicable
Commitment Fee Percentage, plus (ii)(A) the Available Commitment Amount
applicable to the Seasonal Revolving Credit Commitment during such
month (or such shorter period as may be applicable), multiplied by (B)
the Applicable Commitment Fee Percentage; provided, however, that there
shall be no Commitment Fee attributable to (i) the Revolving Credit
Commitment after the Revolving Credit Termination Date or (ii) the
Seasonal Revolving Credit Commitment after the Seasonal Revolving
Credit Termination Date.
(b) Any portion of the Commitment Fee that has not been
previously paid shall be payable in immediately available funds (i) as
to any portion of the Commitment Fee which remains unpaid on November
13, 2002, on November 13
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2002, with respect to any portion of the Commitment Fee unpaid
thereafter, on the last Business Day of each calendar month commencing
November 30, 2002, (ii) with respect to the Revolving Credit
Commitment, on the Revolving Credit Termination Date, (iii) with
respect to the Seasonal Revolving Credit Commitment, on the Seasonal
Revolving Credit Termination Date and (iv) on the date of any reduction
of the Total Revolving Credit Commitment or Total Seasonal Revolving
Credit Commitment, in each case in accordance with the provisions of
this Agreement. The Commitment Fee due to each Lender under this
Section 2.06 shall commence to accrue on November 13, 2002 and cease to
accrue (i) on the Revolving Credit Termination Date, with respect to
the Revolving Credit Commitment, and (ii) on the Seasonal Revolving
Credit Termination Date, with respect to the Seasonal Revolving Credit
Commitment, in each case in accordance with the terms of this Section
2.06. The Commitment Fee shall be calculated on the basis of the actual
number of days elapsed in a year of 360 days.
(c) In consideration of the Loans and other credit
accommodations provided herein, the Borrower shall pay each Lender,
through the Agent, its pro rata share (allocated pro rata based upon
their respective Total Commitments) of a contingency fee (the
"Contingency Fee") in an aggregate amount equal to $2,625,000, which
Contingency Fee shall be due and payable on the dates and in the
amounts (the "Contingency Fee Payments") set forth below:
Contingency Fee
Due Date Payment
-------- ---------------
November 13, 2002 $ 375,000
April 1, 2003 $ 500,000
July 1, 2003 $ 750,000
October 1, 2003 $ 1,000,000
; provided, however, that if, on or before the due date of any
Contingency Fee Payment, Borrower (i) obtains additional capital in
accordance with Section 5.20 hereof and (ii) utilizes the proceeds
thereof to repay the then outstanding amount of the Term Loans as
required by Section 5.20, then, in such event, the remaining
Contingency Fee Payments shall be reduced by a fraction, (i) the
numerator of which shall be the principal amount of the Term Loans so
repaid with the proceeds of such additional capital and (ii) the
denominator of which shall be the outstanding principal amount of the
Term Loans immediately prior to giving effect to such repayment."
SECTION 2.13 Amendment to Section 2.07. Effective as of the Effective
Date, Section 2.07 of the Credit Agreement, together with the heading thereto,
is hereby amended and restated in its entirety to read as follows:
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"SECTION 2.07 Termination or Reduction of the Total Revolving
Credit Commitment; Termination of Term Loan 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 Agent, the Borrower may at any time in whole permanently terminate,
or from time to time in part permanently reduce, the Total 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 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 Term Loan Commitment of each Lender shall
automatically and permanently terminate on the Term Loan Termination
Date and all Term Loans still outstanding on such date shall be due and
payable in full together with accrued interest thereon.
(e) The Seasonal Revolving Credit Commitment of each Lender
shall automatically and permanently terminate on the Seasonal Revolving
Credit Termination Date, and all Seasonal Revolving Credit Loans still
outstanding on such date shall be due and payable in full together with
accrued interest thereon. No Lender shall have any obligation to make
any Seasonal Revolving Credit Loans after the Seasonal Revolving Credit
Termination Date."
SECTION 2.14 Amendment to Section 2.09(a). Effective as of the
Effective Date, Section 2.09(a) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) Within fifteen (15) Business Days after the consummation
of any Asset Sale, the Borrower shall prepay the Obligations in an
amount equal to one hundred percent (100%) of the net cash proceeds of
such Asset Sale; provided, however, that the Borrower shall have no
obligation to make any such
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prepayment pursuant to this Section 2.09(a) until the Borrower has
received, with respect to any Fiscal Year, aggregate net cash proceeds
from Asset Sales of at least one million dollars ($1,000,000) (the
"Asset Sale Limit"). Such prepayments shall be applied, first to the
principal payments of the Term Loan in inverse order of their maturity,
second to the unpaid interest of the Term Loan, third to the unpaid
interest on the Seasonal Revolving Credit Loans, fourth to the unpaid
principal of the Seasonal Revolving Credit Loans and finally to the
repayment of the Revolving Credit Loans."
SECTION 2.15 Amendment to Section 2.09(b). Effective as of the
Effective Date, Section 2.09(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) Within five (5) Business Days after the receipt of
proceeds pursuant to an issuance by the Borrower or any of its
Subsidiaries of any of the Borrower's or any such Subsidiary's equity
securities (and regardless of whether such equity securities are issued
in a public or private sale), the Borrower shall prepay the Obligations
in an amount equal to the net cash proceeds of any such sale of equity
securities. Such prepayments shall be applied first to the principal
payments of the Term Loan in inverse order of their maturity, second to
the unpaid interest of the Term Loan, third to the unpaid interest on
the Seasonal Revolving Credit Loans, fourth to the unpaid principal of
the Seasonal Revolving Credit Loans and finally to the repayment of the
Revolving Credit Loans."
SECTION 2.16 Amendment to Section 2.09(e). Effective as of the
Effective Date, Section 2.09(e) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(e) The Borrower shall make prepayments of the Revolving
Credit Loans and Seasonal Revolving Credit Loans from time to time as
required in order to ensure that the aggregate principal amount of the
Revolving Credit Loans and Seasonal Revolving Credit Loans outstanding
does not exceed the lesser of (i) the Borrowing Base then in effect or
(ii) the sum of the Total Revolving Credit Commitment plus the Total
Seasonal Revolving Credit Commitment."
SECTION 2.17 Amendment to Section 2.13(a). Effective as of the
Effective Date, Section 2.13(a) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"SECTION 2.13. Pro Rata Treatment.
(a) Except as permitted or contemplated by Sections 2.01(e),
2.10 2.11, 2.18, 2.19 or 2.20 hereof, each Loan or other borrowing,
each payment or prepayment of principal of the Notes, each payment of
interest on the Notes, each payment of any fee or other amount payable
hereunder and each reduction of the Total Revolving Credit Commitment,
the Total Seasonal Revolving Credit Commitment or the Total Term Loan
Commitment, as the case may be, shall be
12
Sixth Amendment
made pro rata among the Lenders in the proportions that their Revolving
Credit Commitments bears to the Total Revolving Credit Commitment, that
their Seasonal Revolving Credit Commitments bear to the Total Seasonal
Revolving Credit Commitment and that their Term Loan Commitments bear
to the Total Term Loan Commitment, as applicable. Notwithstanding the
foregoing, in the event that any Lender notifies Agent in writing prior
to the date of a proposed Loan that such Lender will not on such date
make such Lender's ratable portion of such Loan available to the Agent
(any such Lender being hereinafter referred to as a "Non-Funding
Lender"), then, in such event and subject to all other terms and
conditions set forth herein, such Loan shall be made pro rata among all
Lenders other than the Non-Funding Lender (such Lenders being
hereinafter referred to as the "Funding Lenders"); provided, however,
that (i) no Funding Lender shall be obligated to make any such Loan if
the Non-Funding Lender declined to make its ratable portion of such
Loan available to Agent as a result of the occurrence of any Default or
Event of Default hereunder or nonsatisfaction of any conditions
precedent to such loan, and (ii) no Funding Lender shall be obligated
to make any such Loan to the Borrower in an aggregate principal amount
in excess of such Lender's Term Loan Commitment or Revolving Credit
Commitment, as the case may be."
SECTION 2.18 Addition of Section 5.19. Effective as of the Effective
Date, a new Section 5.19 is hereby added to the Credit Agreement which shall
read as follows:
"SECTION 5.19 Perfection Letters. Notwithstanding and in
addition to the requirements set forth in Sections 4.14 and 4.15 of the
Amended and Restated Assignment of Deposit Accounts and Security
Agreement executed by the Borrower and the Collateral Trustee dated as
of July 31, 1998 (as amended, modified or supplemented from time to
time, the "Security Agreement"), the Borrower shall deliver to Agent,
not later than February 13, 2003, (i) letter agreements, substantially
in the form of Exhibit M attached hereto, duly executed by the
Collateral Trustee, Borrower and a sufficient number of armored car
companies that transport Borrower's cash, checks or other remittances
to comply with the requirements of Section 6.20 hereof and (ii) letter
agreements, substantially in the form of Exhibit N attached hereto,
duly executed by the Collateral Trustee, Borrower and a sufficient
number of depository institutions where Borrower deposits its cash,
checks or other remittances to comply with the requirements of Section
6.20 hereof."
SECTION 2.19 Addition of Section 5.20. Effective as of the Effective
Date, a new Section 5.20 is hereby added to the Credit Agreement which shall
read as follows:
"SECTION 5.20. Additional Refinancing. Borrower shall use its
commercially reasonable best efforts to obtain additional capital, in
an amount and on terms and conditions reasonably satisfactory to the
Agent and the Lenders, the proceeds of which shall be used to repay a
portion of the aggregate amount outstanding under the Term Loans. In
addition to and not in limitation of any other provisions of this
Agreement, if (i) Borrower fails to obtain additional
13
Sixth Amendment
capital, on terms and conditions reasonably satisfactory to the Agent
and the Lenders, in a minimum amount of $20,000,000 on or before April
30, 2003 and (ii) Borrower has not engaged by that date an investment
banker reasonably satisfactory to the Agent and the Lenders for
purposes of attempting to obtain such additional capital, then, upon
the request of Required Lenders, the Agent, on behalf of the Lenders,
shall engage an investment banker satisfactory to such Required
Lenders, at Borrower's expense, in order to attempt to obtain
alternative capital sources for Borrower."
SECTION 2.20 Amendment to Section 6.19. Effective as of the Effective
Date, Section 6.19 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"SECTION 6.19. Store Leases; Capital Expenditures. From and
after November 13, 2002, open any new stores or enter into any lease,
commitment or other agreement obligating the Borrower to take occupancy
of any additional leased space; provided, however, that the Borrower
shall be permitted to open and/or finish out new company-owned stores
(which stores shall be opened in replacement of company-owned stores
that are closed in the ordinary course of Borrower's business) if the
total amount of all Capital Expenditures made or incurred by the
Borrower in connection with opening and/or finishing out (i) any such
individual store location does not exceed $75,000 and (ii) all such
store locations do not exceed $1,500,000 in the aggregate; provided
further, however, that the foregoing shall not restrict the opening
and/or finishing out of any franchisee-owned stores if no Capital
Expenditures or other costs are made or incurred by the Borrower in
connection with the opening and/or finishing out of such stores. In
addition to the foregoing, during the period from November 13, 2002
through and including the Final Maturity Date, the Borrower shall not
make any Capital Expenditures except for (a) the Capital Expenditures
expressly permitted pursuant to the first proviso contained in the
preceding sentence and (b) other Capital Expenditures not to exceed
$3,000,000 in the aggregate."
SECTION 2.21 Addition of Section 6.20. Effective as of the Effective
Date, a new Section 6.20 is hereby added to the Credit Agreement, which shall
read in its entirety as follows:
"SECTION 6.20. Collateral Perfection/Control Letters.
Notwithstanding and in addition to the requirements set forth in
Sections 4.14 and 4.15 of the Security Agreement, permit, at any time
on or after February 13, 2003, (i) more than 5% of the aggregate amount
of the Borrower's and its Subsidiaries cash, checks or other
remittances (excluding any cash, checks or other remittances of ACE
Funding) to be held in deposit accounts maintained by financial
institutions with which there is no Letter Agreement (as such term is
defined in the Security Agreement) or (i) more than 5% of the aggregate
dollar amount of the Company's and its Subsidiaries' cash, checks or
other remittances (excluding any cash, checks or other remittances of
ACE Funding) to be transported by armored car couriers with which there
is no Letter Agreement (as such term is defined in the Security
Agreement)."
14
SECTION 2.22 Addition of Section 6.21. Effective as of the Effective
Date, a new Section 6.20 is hereby added to the Credit Agreement, which shall
read in its entirety as follows:
"SECTION 6.21. ACE Funding. Notwithstanding anything to the
contrary contained in this Agreement, (i) ACE Funding shall be entitled
to incur Indebtedness in favor of Autobahn Funding Company LLC or any
other Person(s) (any such Person being hereinafter referred to as an
"ACE Funding Lender"), and such 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 the 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 loan, advance or transfer to ACE Funding up to $2,900,000
during the Usage Period for purposes of allowing ACE Funding to (a)
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 (b) 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 any ACE
Funding Lender to have or obtain a Lien on any assets or properties of
the Borrower or any of its Subsidiaries (other than ACE Funding), (v)
neither Borrower nor any of its Subsidiaries (other than ACE Funding)
will engage in any merger or consolidation with ACE Funding, (vi)
neither Borrower nor any of its Subsidiaries (other than ACE Funding)
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, ACE Funding (provided, however, that the Borrower
shall be permitted to lease its SSMs to ACE Funding) and (vii) except
as specifically permitted under clause (ii) above, neither Borrower nor
any of its Subsidiaries (other than ACE Funding) 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)."
SECTION 2.23 Amendment to Article VII. Effective as of the Effective
Date, the last paragraph of Article VII of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"then, and upon the occurrence of any such Event of Default (other than
an event described in paragraph (e) or (f) above), and at any time
thereafter during the continuance of such Event of Default, the Agent
may, and upon the written request of the Required Lenders shall, by
written notice (or facsimile notice promptly confirmed in writing) to
the Borrower, take any or all of the following actions at the same or
different times: (i) engage (only upon the request by the Required
Lenders) an independent financial consultant satisfactory to the
Lenders to conduct, (A) an analytical review of the Borrower's business
practices and any other matter deemed necessary by the Agent and the
Lenders, and (B) the Borrower hereby irrevocably agrees to afford such
financial consultant full access
15
Sixth Amendment
to the relevant books, records and employees of the Borrower as such
financial consultant shall deem necessary or appropriate in light of
the scope of such review, (ii) terminate forthwith all or any portion
of the Total Commitment and the obligations of WFB to issue or cause to
be issued Letters of Credit; (iii) demand that the Borrower provide to
WFB, and the Borrower upon such demand agrees to provide, cash
collateral in an amount equal to the Total Letter of Credit Exposure of
the Borrower then existing, such cash collateral to be deposited in a
cash collateral account to be held by Agent for the benefit of WFB; and
(iv) declare the Notes and all reimbursement obligations in respect of
drawings under Letters of Credit then outstanding to be forthwith due
and payable, whereupon the principal of such Notes together with
accrued interest and fees thereon, together with all reimbursement
obligations in respect of drawings under Letters of Credit and all
other liabilities of the Borrower accrued hereunder, shall become
forthwith due and payable both as to principal and interest, without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in the
other Credit Documents to the contrary notwithstanding; provided,
however, that with respect to an Event of Default described in
paragraph (e) or (f) above, the Total Commitment and the obligations of
WFB to issue Letters of Credit shall automatically terminate and the
Notes, all reimbursement obligations in respect of drawings under
Letters of Credit, any unpaid accrued fees and any other liabilities of
the Borrower accrued hereunder shall automatically become due and
payable, both as to principal and interest, without presentment,
demand, protest, notice of intent to accelerate, notice of acceleration
or other notice of any kind, all of which are hereby expressly waived
by the Borrower, anything contained herein or in the other Credit
Documents to the contrary notwithstanding. The remedies provided in the
Credit Documents are cumulative and not exclusive of any remedies
provided by law."
SECTION 2.24 Amendment of Exhibit C, Exhibit I, Schedule 2.01(a),
Schedule 2.01(b), Schedule 6.19(a) and Schedule 6.19(b). Effective as of the
Effective Date, (i) Exhibit C, Exhibit I and Schedules 2.01(a) and 2.01(b) to
the Credit Agreement are hereby replaced with the forms of Exhibit C, Exhibit I
and Schedules 2.01(a) and 2.01(b) attached hereto and (ii) Schedule 6.19(a) and
Schedule 6.19(b) are hereby deleted in their entirety.
SECTION 2.25 Miscellaneous Additions. Effective as of the Effective
Date, (i) Schedule 2.01(c) of the Credit Agreement is hereby added to the Credit
Agreement in the form of Schedule 2.01(c) attached hereto and (ii) Exhibit K,
Exhibit M and Exhibit N to the Credit Agreement are hereby added to the Credit
Agreement in the forms of Exhibit K, Exhibit M and Exhibit N attached hereto.
ARTICLE III. CONDITIONS PRECEDENT
SECTION 3.01 The effectiveness of the amendments in Article II of this
Amendment is subject to the satisfaction of the following conditions precedent:
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Sixth Amendment
(a) The Lenders shall have received (i) this Amendment, duly
executed by the Borrower and the Lenders, (ii) a certificate of the
Secretary of the Borrower acknowledging (A) that the Borrower's Board
of Directors has adopted, approved, consented to and ratified
resolutions which authorize the execution, delivery and performance by
the Borrower of this Amendment, and (B) the names of the officers of
the Borrower authorized to sign this Amendment together with specimen
signatures of such officers, (iii) a Consent and Ratification of the
existing Guaranty Agreements, substantially in the form of Exhibit G to
the Credit Agreement, executed by each Guarantor, (iv) the Second
Amended and Restated Term Notes in the form attached hereto as Exhibit
A, duly executed by Borrower in favor of the Lenders, (v) the Amended
and Restated Revolving Credit Notes in the form attached hereto as
Exhibit B, duly executed by Borrower in favor of the Lenders, (vi) the
Seasonal Revolving Credit Notes in the form attached hereto as Exhibit
K, duly executed by Borrower in favor of the Lender, and (vii) such
additional documents, instruments and information as the Agents or any
Lender may reasonably request;
(b) The representations and warranties contained herein and in
the Credit Agreement, as amended hereby, and the other Credit Documents
shall be true and correct in all material respects as of the date
hereof, as if made on the date hereof;
(c) After giving effect to this Amendment, no Default or Event
of Default shall have occurred and be continuing;
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to the Agents and the Required Lenders and their legal
counsel;
(e) Agent shall have received Borrower's unaudited
consolidated financial statements as of September 30, 2002, which shall
be in form and substance satisfactory to Agent;
(f) Borrower shall have paid (i) the Commitment Fee accrued
pursuant to Section 2.06 of the Credit Agreement through the date of
this Amendment, as required by Section 2.06(b) of the Credit Agreement,
(ii) the portion of the Contingency Fee described in Section 2.06 of
the Credit Agreement, as amended hereby, which is due and payable on
the date hereof and (iii) the portion of the commitment fee described
in Section 4.01 of this Amendment which is due and payable on the date
hereof; and
(g) Borrower shall have paid all reasonable fees and expenses
incurred by counsel to Agent and Lenders in connection with the
transactions contemplated by this Amendment, including, without
limitation, all reasonable fees and expenses incurred in connection
with the preparation of this Amendment and any other loan documentation
related thereto.
ARTICLE IV. COVENANTS
SECTION 4.01 In consideration of the Loans and other credit
accommodations
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Sixth Amendment
provided herein, the Borrower hereby agrees to pay to each Lender a commitment
fee in an amount equal to 1.00% of each Lender's combined Revolving Credit
Commitment (as of the date of this Amendment), Term Loan Commitment (as of the
date of this Amendment) and Seasonal Revolving Credit Commitment (as of January
16, 2003, as set forth on Schedule 2.01(c) attached hereto). The Borrower, the
Lenders and the Agents hereby agree and acknowledge that each Lender's
commitment fee shall be deemed fully earned and nonrefundable upon execution of
this Amendment by the Borrower, and shall be payable, in immediately available
funds, as follows: (i) $1,111,750 of the aggregate commitment fee shall be due
and payable on the date of this Amendment (which amount shall be allocated to
the Lenders pro rata based upon their respective commitment amounts) and (ii)
$1,111,750 of the aggregate commitment fee shall be due and payable on February
28, 2003 (which amount shall be allocated to the Lenders pro rata based upon
their respective commitment amounts).
ARTICLE V. REPRESENTATIONS AND WARRANTIES
SECTION 5.01 The Borrower hereby represents and warrants to the Agents
and the Lenders that (a) the representations and warranties contained in the
Credit Agreement, as amended hereby, and in any other Credit Document are true
and correct in all material respects on and as of the date hereof as though made
on and as of the date hereof (except insofar as such representations and
warranties relate expressly to an earlier date); (b) no Default or Event of
Default under the Credit Agreement, as amended hereby, or any other Credit
Document has occurred and is continuing; and (c) Borrower is in compliance in
all material respects with all covenants and agreements contained in the Credit
Agreement, as amended hereby, and in the other Credit Documents.
ARTICLE VI. LIMITED WAIVER
SECTION 6.01 By execution of this Amendment, the Agents and the Lenders
hereby waive any violation, Default or Event of Default that would otherwise
occur under the Credit Agreement solely as a result of (a) the Borrower's
formation of ACE Funding or (b) the Borrower's amendment of its agreements and
cessation of its agency relationship with Goleta National Bank on the terms
disclosed in the Borrower's Form 8-K filed with the Securities and Exchange
Commission on November 5, 2002. Except as expressly provided in the preceding
sentence, (i) nothing contained in this Amendment or any other communication
between Agents and/or Lenders and the Borrower shall be a waiver of any past,
present or future violation, Default or Event of Default of the Borrower under
the Credit Agreement or any Credit Document; (ii) Agents and Lenders hereby
expressly reserve any rights, privileges and remedies under the Credit Agreement
and each Credit Document that Agents and Lenders may have with respect to each
violation, default or Event of Default, and any failure by Agents and/or Lenders
to exercise any right, privilege or remedy as a result of the violations set
forth above shall not directly or indirectly in any way whatsoever either (A)
impair, prejudice or otherwise adversely affect the rights of Agents and/or
Lenders, except as set forth herein, at any time to exercise any right,
privilege or remedy in connection with the Credit Agreement or any Credit
Documents, (B) amend or alter any provision of the Credit Agreement or any
Credit Documents or any other contract or instrument, or (C) constitute any
course of dealing or other basis for altering any obligation of the Borrower or
any rights, privilege or remedy of Agents and/or Lenders under the Credit
Agreement or any Credit Documents or any other contract or instrument; and (iii)
nothing in this Amendment shall be construed to be a consent.
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Sixth Amendment
ARTICLE VII. MISCELLANEOUS PROVISIONS
SECTION 7.01 Ratification of Credit Agreement and Other Credit
Documents. Except as expressly provided herein, (i) the Credit Agreement and all
other Credit Documents shall remain unmodified and in full force and effect as
supplemented and amended hereby, and (ii) the Borrower hereby affirms all the
provisions of the Credit Agreement, as amended hereby, and the other Credit
Documents.
SECTION 7.02 Confirmation of the Security Documents. The Borrower
hereby acknowledges and confirms that the Collateral (as defined in the Security
Documents) continues to secure the Liabilities (as defined in the Security
Documents), including those arising under the Credit Agreement, as amended
hereby.
SECTION 7.03 Counterparts. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the same
instrument.
SECTION 7.04 RELEASE. THE BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO
DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR
NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF
ITS LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF OR
DAMAGES OF ANY KIND OR NATURE FROM AGENTS OR LENDERS. THE BORROWER HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES AGENTS AND LENDERS,
THEIR PREDECESSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND
ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES,
COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR
UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT
LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AMENDMENT IS EXECUTED, WHICH THE BORROWER MAY NOW OR HEREAFTER HAVE AGAINST
AGENTS AND/OR LENDERS, THEIR PREDECESSORS, OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH
CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, AND ARISING FROM ANY "LOANS", INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE CREDIT AGREEMENT OR OTHER CREDIT DOCUMENTS, AND THE
NEGOTIATION OF, AND EXECUTION OF, THIS AMENDMENT.
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Sixth Amendment
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first above written.
BORROWER:
ACE CASH EXPRESS, INC.
By: /s/ XXX X. XXXXXX
--------------------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President &
Chief Financial Officer
AGENT:
XXXXX FARGO BANK
TEXAS, NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
SYNDICATION AGENT:
BANK OF AMERICA, N.A.
By: /s/ XXXX X. XXXXXXX III
--------------------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
MANAGING AGENTS:
JPMORGAN CHASE BANK
(f/k/a THE CHASE MANHATTAN BANK)
By: /s/ D. XXXXX XXXXXX
--------------------------------------------
Name: D. Xxxxx Xxxxxx
Title: Senior Vice President
Sixth Amendment
WACHOVIA BANK, NATIONAL ASSOCIATION
(f/k/a FIRST UNION NATIONAL BANK)
By: /s/ X. X. XXXX
--------------------------------------------
Name: X. X. Xxxx
Title: Director
LENDERS:
XXXXX FARGO BANK
TEXAS, NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.
By: /s/ XXXX X. XXXXXXX III
--------------------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
JPMORGAN CHASE BANK
(f/k/a THE CHASE MANHATTAN BANK)
By: /s/ D. XXXXX XXXXXX
--------------------------------------------
Name: D. Xxxxx Xxxxxx
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
(f/k/a FIRST UNION NATIONAL BANK)
By: /s/ X. X. XXXX
--------------------------------------------
Name: X. X. Xxxx
Title: Director
Sixth Amendment
NATIONAL CITY BANK
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ XXXXX X. XXXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
TEXAS CAPITAL BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXX
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
FIRST AMERICAN BANK, SSB
By: /s/ XXXX XXXXXXXX
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
Sixth Amendment
SCHEDULE 2.01(a)
TERM LOAN COMMITMENTS
Lender Commitment Percentage of Commitment
------ --------------- ------------------------
Xxxxx Fargo Bank Texas, N.A. $ 14,665,807.85 30.97%
Bank of America, N.A. $ 10,623,397.20 22.44%
Wachovia Bank, N. A. $ 8,071,022.40 17.05%
JPMorgan Chase Bank $ 8,071,022.40 17.05%
National City Bank $ 2,690,341.04 5.68%
Hibernia National Bank $ 1,076,136.37 2.27%
Texas Capital Bank, N.A $ 1,076,136.37 2.27%
First American Bank, SSB $ 1,076,136.37 2.27%
Total Term Loan Commitments $ 47,350,000.00 100.00%
Schedule 2.01(A)
SCHEDULE 2.01(b)
REVOLVING CREDIT COMMITMENTS
Lender Commitment Percentage of Commitment
------ ---------------- ------------------------
Xxxxx Fargo Bank Texas, National $ 32,796,000.00 27.33%
Association
Bank of America, N.A. $ 31,296,000.00 26.08%
Wachovia Bank, National Bank $ 20,460,000.00 17.05%
JPMorgan Chase Bank $ 20,460,000.00 17.05%
National City Bank $ 6,816,000.00 5.68%
Hibernia National Bank $ 2,724,000.00 2.27%
Texas Capital Bank National $ 2,724,000.00 2.27%
Association
First American Bank, SSB $ 2,724,000.00 2.27%
Total Revolving Credit Commitments $ 120,000,000.00 100.00%
Schedule 2.01(b)
SCHEDULE 2.01(c)
SEASONAL REVOLVING CREDIT COMMITMENTS
Commitment
during period
commencing
December 1, 2002
through and Percentage Commitment during period commencing January 1, 2003 through
including of Each and including January 15, 2003
December 31, Lender's ($45,000,000)
2002 and Commitment
Lender Commitment
during period Seasonal Percentage of
commencing March Percentage Revolving Each Lender's
1, 2003 through Seasonal of Each Credit Loans Commitment
and including Revolving Lender's greater than greater than
the Seasonal Credit Loans Commitment $35,000,000 $35,000,000
Revolving Credit less than or less than or but less than but less than
Termination Date equal to equal to or equal to or equal to
($10,000,000) $35,000,000 $35,000,000 $45,000,000 $45,000,000
------------------ ------------------ ------------- --------------- ------------ ------------- ---------------
Xxxxx Fargo Bank $2,733,000.00 27.33% $9,565,500.00 27.33% $5,750,000.00 57.50%
Texas, National
Association
Bank of America, $2,608,000.00 26.08% $9,128,000.00 26.08% N/A N/A
N.A.
Wachovia Bank, $1,705,000.00 17.05% $5,967,500.00 17.05% N/A N/A
National
Association
JPMorgan Chase $1,705,000.00 17.05% $5,967,500.00 17.05% $2,500,000.00 25.00%
Bank
National City $568,000.00 5.68% $1,988,000.00 5.68% N/A N/A
Bank
Hibernia $227,000.00 2.27% $794,500.00 2.27% X/X X/X
Xxxxxxxx Xxxx
Xxxxx Capital $227,000.00 2.27% $794,500.00 2.27% $1,750,000.00 17.50%
Bank, National
Association
First American $227,000.00 2.27% $794,500.00 2.27% N/A N/A
Bank, SSB
Total Seasonal $10,000,000.00 100.00% $35,000,000.00 100.00% $10,000,000.00 100.00%
Revolving Credit
Commitments
Commitment during period commencing January 16, 2003 through
and including February 28, 2003
($55,000,000)
Lender
Seasonal Percentage of
Revolving Each Lender's
Seasonal Percentage of Credit Loans Commitment
Revolving Each Lender's greater than greater than
Credit Loans Commitment $35,000,000 $35,000,000
less than or less than or but less than but less than
equal to equal to or equal to or equal to
$35,000,000 $35,000,000 $55,000,000 $55,000,000
------------------ --------------- --------------- --------------- ---------------
Xxxxx Fargo Bank $9,565,500.00 27.33% $11,500,000.00 57.50%
Texas, National
Association
Bank of America, $9,128,000.00 26.08% N/A N/A
N.A.
Wachovia Bank, $5,967,500.00 17.05% N/A N/A
National
Association
JPMorgan Chase $5,967,500.00 17.05% $5,000,000.00 25.00%
Bank
National City $1,988,000.00 5.68% N/A N/A
Bank
Hibernia $794,500.00 2.27% N/A N/A
National Bank
Texas Capital $794,500.00 2.27% $3,500,000.00 17.50%
Bank, National
Association
First American $794,500.00 2.27% N/A N/A
Bank, SSB
Total Seasonal $35,000,000.00 100.00% $20,000,000.00 100.00%
Revolving Credit
Commitments
EXHIBIT A
FORM OF SECOND AMENDED AND RESTATED TERM NOTE
U.S. $_________ Dallas, Texas November __, 2002
FOR VALUE RECEIVED, the undersigned, ACE CASH EXPRESS, INC., a Texas
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
________________________ (the "Lender"), for the account of its Applicable
Lending Office, as defined in that certain Amended and Restated Credit
Agreement, dated as of November 9, 2000, by and among the Borrower, the Lender,
certain other lenders from time to time parties thereto (collectively, the
"Lenders"), Xxxxx Fargo Bank Texas, National Association, a national banking
association, as Agent for the Lenders, Bank of America, N.A., a national banking
association, as Syndication Agent, and Wachovia Bank, National Association, a
national banking association (f/k/a First Union National Bank), and JPMorgan
Chase Bank, a New York state banking corporation (f/k/a The Chase Manhattan
Bank), both as Managing Agents (as amended, modified or supplemented from time
to time, the "Credit Agreement") (capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement) or
any other office designated by the Lender the principal sum of _______________
DOLLARS ($_______________).
The Borrower promises to pay interest on the unpaid principal amount of
the Term Loan from the date of such Term 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 Xxxxx Fargo Bank Texas, National Association, a national
banking association, as Agent, at 0000 Xxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxx,
Xxxxx 00000, in same day funds.
All payments made on account of principal of each Term Loan, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Second Amended and Restated Term 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 Term Loans in accordance with the terms of this Note.
This Note is one of the Term 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, 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.
1
FORM OF TERM NOTE
This Note amends, modifies and restates, but does not extinguish or
constitute a novation of, the indebtedness evidenced by that certain Amended and
Restated Term Note, dated April 30, 2002 in the principal amount of
$______________, executed by the Borrower and payable to the Lender, which
Amended and Restated Term Note was given in modification and replacement, but
not in extinguishment or novation of, the indebtedness evidenced by that certain
Term Note, dated November 7, 2001, in the principal amount of $___________,
executed by the Borrower and payable to the Lender, which Term Note was given in
modification and replacement, but not in extinguishment or novation of, the
indebtedness evidenced by that certain Reducing Revolver Note, dated November 9,
2000, 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 notes 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.
ACE CASH EXPRESS, INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
2
FORM OF TERM NOTE
LOANS, MATURITIES
AND PAYMENTS OF PRINCIPAL AND INTEREST
Rate of Amount of Amount of
Amount Interest Principal Interest Unpaid
Borrowing and Type of Applicable Paid or Paid or Principal Notation
Date Loan to Loan Prepaid Prepaid Balance Made By
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3
FORM OF TERM NOTE
EXHIBIT B
FORM OF AMENDED AND RESTATED REVOLVING CREDIT NOTE
U.S. $________ Dallas, Texas November ___, 2002
FOR VALUE RECEIVED, the undersigned, ACE CASH EXPRESS, INC., a Texas
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
__________________ (the "Lender"), for the account of its Applicable Lending
Office, as defined in that certain Amended and Restated Credit Agreement, dated
as of the date hereof, by and among the Borrower, the Lender, certain other
lenders from time to time parties thereto (collectively, the "Lenders"), Xxxxx
Fargo Bank Texas, National Association, a national banking association, as Agent
for the Lenders, Bank of America, N.A., a national banking association, as
Syndication Agent, and WACHOVIA bank, National Association, a national banking
association (f/k/a First Union National Association). and JPMorgan Chase
Manhattan Bank, a New York state banking corporation (f/k/a The Chase Manhattan
Bank), both as Managing Agents (as amended, modified or supplemented from time
to time, the "Credit Agreement") (capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement) or
any other office designated by the Lender, the lesser of (i) the principal sum
of __________________ DOLLARS ($________________), or (ii) the aggregate unpaid
principal amount of all 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 Xxxxx Fargo Bank Texas, National Association, a national
banking association, as Agent, at 0000 Xxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxx,
Xxxxx 00000, 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 Amended and Restated 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
1
FORM OF REVOLVING CREDIT NOTE
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.
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 November 9, 2000 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.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
2
FORM OF REVOLVING CREDIT NOTE
LOANS, MATURITIES
AND PAYMENTS OF PRINCIPAL AND INTEREST
Rate of Amount of Amount of
Amount Interest Principal Interest Unpaid
Borrowing and Type of Applicable Paid or Paid or Principal Notation
Date Loan to Loan Prepaid Prepaid Balance Made By
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3
FORM OF REVOLVING CREDIT NOTE
EXHIBIT C
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 Amended and Restated Credit Agreement,
dated as of November 9, 2000, by and among ACE Cash Express, Inc. (the
"Borrower"), Xxxxx Fargo Bank Texas, National Association, as Agent, Bank of
America, N.A., a national banking association, as Syndication Agent, Wachovia
Bank, National Association, a national banking association, and XX Xxxxxx Chase
Bank, a New York state banking corporation, both as Managing Agents, and the
other Lenders party thereto (as amended, modified, supplemented or extended from
time to time, 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 amount 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 endorsable 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 Guarantors' stores or in
transit with any armored courier.) $ $ $ $ $ $ $
------- ------- ------- --------- -------- ------ --------
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. Less: Aggregate amount of any cash and/or
checks received and/or held by the Borrower
or the Guarantors for payment to third parties
(other than Goleta National Bank), including,
but not limited to, cash and checks received by
the Borrower or a Subsidiary for the purchase
of lottery tickets or the payment of any type
of xxxx on behalf of a customer in excess
of $12,500,000. $ $ $ $ $ $ $
------- ------- ------- --------- -------- ------ --------
4. 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 $ $ $ $ $ $ $
------- ------- ------- --------- -------- ------ --------
5. Less: Aggregate principal amount of all
Revolving Credit Loans and Seasonal Revolving
Credit Loans outstanding as of the end of the
Prior Week $ $ $ $ $ $ $
------- ------- ------- --------- -------- ------ --------
6. 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.
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
Date:
--------------------------------
EXHIBIT C
EXHIBIT I
BORROWING NOTICE
_______, 200_
Xxxxx Fargo Bank Texas, National Association, as Agent
0000 Xxxxxxx Xxxx Xxxxxxxxx,
Xxxxx 000
Xxxxx, Xxxxx 00000
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, ACE Cash Express, Inc., a Texas corporation (the
"Borrower"), refers to the Credit Agreement, dated as of November 9, 2000 (as
amended from time to time in accordance with its terms, 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
Xxxxx Fargo Bank Texas, National Association, a national banking association, as
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 the Credit Agreement, and in that connection sets forth below
the information relating to such a borrowing (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) Reference Rate or Alternate Base Loan
------------------------------
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 and all other
borrowings which have been requested on or prior to the date of the Proposed
Borrowing but which have not been made prior to such date, the aggregate
principal amount of (i) Revolving Credit Loans will not exceed the aggregate of
the Revolving Credit Commitment and (ii) Seasonal Revolving Credit Loans will
not exceed the aggregate of the Seasonal Revolving Credit Commitment; and
(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.
Attached hereto are calculations demonstrating the Borrower's
compliance with the aforementioned financial covenants.
Sincerely,
ACE CASH EXPRESS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
2
EXHIBIT K
FORM OF SEASONAL REVOLVING CREDIT NOTE
U.S. $ Dallas, Texas November , 2002
------------- --
FOR VALUE RECEIVED, the undersigned, ACE CASH EXPRESS, INC., a Texas
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender"), for the account of its Applicable
Lending Office (as defined in that certain Amended and Restated Credit
Agreement, dated as of November 9, 2000, by and among the Borrower, the Lender,
certain other lenders from time to time parties thereto (collectively, the
"Lenders"), Xxxxx Fargo Bank Texas, National Association, a national banking
association, as Agent for the Lenders, Bank of America, N.A., a national banking
association, as Syndication Agent, Wachovia Bank, National Association, a
national banking association (f/k/a First Union National Bank), and JPMorgan
Chase Bank, a New York state banking corporation (f/k/a The Chase Manhattan
Bank), both as Managing Agents (as amended, modified or supplemented from time
to time, the "Credit Agreement") (capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement) or
any other office designated by the Lender, the lesser of (i) the principal sum
of ______________________________ DOLLARS ($______________), or (ii) the
aggregate unpaid principal amount of all Seasonal Revolving Credit Loans made by
the Lender to the Borrower pursuant to the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of
each Seasonal Revolving Credit Loan from the date of such Seasonal Revolving
Credit Loan until such principal amount is paid in full, at such interest rates,
and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Xxxxx Fargo Bank Texas, National Association, a national
banking association, as Agent, at 0000 Xxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxx,
Xxxxx 00000, in same day funds. Each Seasonal Revolving Credit Loan made by the
Lender to the Borrower and all payments made on account of principal thereof,
shall be recorded by the Lender and, prior to any transfer hereof, endorsed on
the grid attached hereto which is part of this Seasonal Revolving Credit Note
(this "Note"), provided, however, that failure of the Lender to make such
notation or any error therein shall not in any manner affect the obligation of
the Borrower to repay such Seasonal Revolving Credit Loans in accordance with
the terms of this Note.
This Note is one of the Seasonal Revolving Credit Notes referred to in,
and is subject to and entitled to the benefits of, the Credit Agreement. This
Note is secured by the Collateral described in the Credit Documents. The Credit
Agreement, among other things, (i) provides for the making of Seasonal Revolving
Credit Loans by the Lender to the Borrower from time to time pursuant to Section
2.01(e) of the Credit Agreement in an aggregate outstanding amount not to exceed
at any time the U.S. dollar amount first above mentioned, the indebtedness of
the
FORM OF SEASONAL REVOLVING CREDIT NOTE
1
Borrower resulting from each such Seasonal Revolving Credit Loan being evidenced
by this Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
The Borrower hereby waives presentment, demand, protest, notice of
intent to accelerate, notice of acceleration and any other notice of any kind,
except as provided in the Credit Agreement. No failure to exercise, and no delay
in exercising, any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF TEXAS (EXCEPT THAT THE PROVISIONS OF CHAPTER 346 OF THE
TEXAS FINANCE CODE, WHICH REGULATES CERTAIN REVOLVING CREDIT LOAN ACCOUNTS,
SHALL NOT APPLY TO THIS NOTE).
ACE CASH EXPRESS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FORM OF SEASONAL REVOLVING CREDIT NOTE
2
LOANS, MATURITIES
AND PAYMENTS OF PRINCIPAL AND INTEREST
Rate of Amount of Amount of
Amount and Interest Principal Interest Unpaid
Borrowing Type of Applicable Paid or Paid or Principal Notation
Date Loan to Loan Prepaid Prepaid Balance Made By
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FORM OF SEASONAL REVOLVING CREDIT NOTE
3
