EXHIBIT 10.3
EXECUTION COPY
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LOAN AND SERVICING AGREEMENT
Dated as of December 18, 2002
Among
ACE FUNDING LLC
as Borrower
ACE CASH EXPRESS, INC.
in its individual capacity and as Check-Xxxxxx
AUTOBAHN FUNDING COMPANY LLC
as Lender
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
FRANKFURT AM MAIN
as Administrative Agent and as Liquidity Agent
and
U.S. BANK NATIONAL ASSOCIATION
as Collateral Agent
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TABLE OF CONTENTS
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ARTICLE I LOANS......................................................................................1
SECTION 1.01 Commitments to Lend; Limits on Lender's Obligations..........................1
SECTION 1.02 Borrowing Procedures.........................................................2
SECTION 1.03 Security Interest............................................................2
SECTION 1.04 Use of Proceeds; Provision of Cash...........................................2
ARTICLE II NOTE.......................................................................................4
SECTION 2.01 Note.........................................................................4
SECTION 2.02 Interest on Loans............................................................4
SECTION 2.03 General Procedures...........................................................4
SECTION 2.04 Commitment Fee...............................................................5
SECTION 2.05 Transfer and Exchange of Notes...............................................5
SECTION 2.06 Optional Redemption..........................................................5
ARTICLE III SETTLEMENTS................................................................................5
SECTION 3.01 Accounts; Investments........................................................5
SECTION 3.02 Collection of Moneys.........................................................7
SECTION 3.03 Settlement...................................................................7
SECTION 3.04 Payments and Computations, Etc..............................................11
ARTICLE IV YIELD PROTECTION..........................................................................12
SECTION 4.01 Yield Protection............................................................12
SECTION 4.02 Funding Losses..............................................................13
SECTION 4.03 Taxes.......................................................................13
ARTICLE V CONDITIONS OF BORROWINGS..................................................................15
SECTION 5.01 Conditions Precedent to Initial Borrowing...................................15
SECTION 5.02 Conditions Precedent to All Borrowings......................................17
ARTICLE VI REPRESENTATIONS AND WARRANTIES............................................................18
SECTION 6.01 Representations and Warranties of Borrower..................................18
SECTION 6.02 Representations and Warranties of the Check-Xxxxxx and ACE..................21
ARTICLE VII GENERAL COVENANTS OF THE BORROWER AND THE CHECK-XXXXXX....................................23
SECTION 7.01 Affirmative Covenants of Borrower...........................................23
SECTION 7.02 Reporting Requirements of Borrower..........................................24
SECTION 7.03 Negative Covenants of Borrower..............................................25
SECTION 7.04 Covenants of the Check-Xxxxxx and ACE.......................................26
SECTION 7.05 Separate Existence..........................................................29
ARTICLE VIII ADMINISTRATION AND COLLECTION.............................................................31
SECTION 8.01 Check-Xxxxxx to Act.........................................................31
SECTION 8.02 Insurance...................................................................33
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SECTION 8.03 Reporting...................................................................33
SECTION 8.04 Books and Records...........................................................34
SECTION 8.05 Check-Xxxxxx Representations................................................34
SECTION 8.06 Costs of Servicing; Check-Xxxxxx'x Fee......................................34
SECTION 8.07 Successor Check-Xxxxxx; Liquidation.........................................34
SECTION 8.08 Bailee for Collateral Agent.................................................35
ARTICLE IX EVENTS OF DEFAULT; TERMINATION EVENTS.....................................................35
SECTION 9.01 Events of Default...........................................................35
SECTION 9.02 Remedies....................................................................37
ARTICLE X THE ADMINISTRATIVE AGENT; COLLATERAL AGENT................................................38
SECTION 10.01 Authorization and Action....................................................38
SECTION 10.02 Administrative Agent's and Collateral Agent's Reliance, Etc.................38
SECTION 10.03 The Liquidity Agent, the Collateral Agent, the Administrative Agent and
Affiliates..................................................................39
SECTION 10.04 Appointment and Powers of Collateral Agent..................................39
SECTION 10.05 Collateral Agent and Employees of the Collateral Agent......................40
SECTION 10.06 Successor Collateral Agent..................................................41
ARTICLE XI ASSIGNMENT OF LENDER'S INTEREST...........................................................42
SECTION 11.01 Restrictions on Assignments.................................................42
SECTION 11.02 Rights of Assignee..........................................................42
SECTION 11.03 Evidence of Assignment......................................................42
ARTICLE XII INDEMNIFICATION...........................................................................43
SECTION 12.01 Indemnities by Borrower.....................................................43
SECTION 12.02 Indemnities by Check-Xxxxxx.................................................45
SECTION 12.03 Indemnities by ACE..........................................................46
ARTICLE XIII MISCELLANEOUS.............................................................................47
SECTION 13.01 Amendments, Etc.............................................................47
SECTION 13.02 Notices, Etc................................................................48
SECTION 13.03 No Waiver; Remedies.........................................................48
SECTION 13.04 Binding Effect; Survival....................................................48
SECTION 13.05 Costs, Expenses and Taxes...................................................48
SECTION 13.06 No Proceedings..............................................................49
SECTION 13.07 Confidentiality.............................................................49
SECTION 13.08 Captions and Cross References...............................................50
SECTION 13.09 Integration.................................................................50
SECTION 13.10 Governing Law...............................................................51
SECTION 13.11 Waiver of Jury Trial........................................................51
SECTION 13.12 Consent to Jurisdiction; Waiver of Immunities...............................51
SECTION 13.13 Execution in Counterparts; Severability.....................................51
SECTION 13.14 No Recourse Against Certain Parties.........................................52
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APPENDICES
APPENDIX A Definitions
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SCHEDULES
SCHEDULE I Vault Collection Accounts
SCHEDULE II SSMs and Locations
SCHEDULE III Excluded SSMs and Locations
SCHEDULE IV Insurance Schedule
SCHEDULE V Check Cashing Fees
EXHIBITS
EXHIBIT 1.02 Form of Borrowing Notice
EXHIBIT 2.01 Form of Note
EXHIBIT 5.01(n) Form of SSM Acknowledgment
EXHIBIT 5.01(p) Form of Agent Bank Acknowledgment
EXHIBIT 5.01(q) Form of Approved Tax Provider Acknowledgment
EXHIBIT 5.01(u) Form of Company Note
EXHIBIT 5.01(v) Form of Electronic Presentment Agreement
EXHIBIT 5.01(w) Form of Account Control Agreement
EXHIBIT 5.01(x) Form of Intercreditor Agreement
EXHIBIT 8.03(i) Form of Borrowing Base Report
EXHIBIT 8.03(ii) Form of Servicing Report
ANNEXES
ANNEX I Form of Approved Courier Agreement
ANNEX II Form of Approved Vault Bank Agreement
ANNEX III Check-Xxxxxx'x Credit and Collection Policy
ANNEX IV Form of Approved Cashier's Check
ANNEX V Form of Approved RAL Agreement
ANNEX VI Collateral Agent Fee Letter
LOAN AND SERVICING AGREEMENT
Dated as of December 18, 2002
THIS IS A
LOAN AND SERVICING AGREEMENT, among ACE FUNDING LLC, a
Delaware limited liability company (the "Borrower"), ACE CASH EXPRESS, INC., a
Texas corporation, individually ("ACE") and as Check-Xxxxxx (in such capacity,
the "Check-Xxxxxx"), AUTOBAHN FUNDING COMPANY LLC, a Delaware limited liability
company (the "Lender"), DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
FRANKFURT AM MAIN ("DZ Bank"), as administrative agent for Lender (in such
capacity, the "Administrative Agent") and as liquidity agent for Liquidity
Providers (in such capacity, the "Liquidity Agent"), and U.S. BANK NATIONAL
ASSOCIATION, as collateral agent for the Secured Parties (in such capacity, the
"Collateral Agent"). Unless otherwise indicated, capitalized terms used in this
Agreement are defined in Appendix A.
Background
1. Borrower intends to borrow Loans from the Lender and has requested
Lender and Lender has agreed, subject to the terms and conditions contained in
this Agreement, to make such Loans to Borrower from time to time during the term
of this Agreement. The Loans will be secured by a security interest in all of
the assets of Borrower.
2. The Check-Xxxxxx has agreed to undertake certain obligations in
connection with the cashing of tax refund loan checks as set forth herein and
the Borrower has agreed to provide cash inventory to the Check-Xxxxxx in
exchange for the Cash Inventory Provision Fee.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
LOANS
SECTION 1.01 Commitments to Lend; Limits on Lender's Obligations. Upon
the terms and subject to Article V and the other conditions of this Agreement,
from time to time during each Usage Period and prior to the Termination Date,
the Borrower may request that Lender make loans to the Borrower on a revolving
basis secured by a Lien on all of the assets of Borrower (each, a "Loan") and
Lender shall make such Loans; provided that no Loan shall be made by Lender if,
after giving effect thereto, the sum of (1) the outstanding Face Amount of all
Commercial Paper Notes issued by Lender with respect to the Transaction
Documents less the aggregate amount of all interest or discount accrued on or
scheduled to accrue on such Commercial Paper Notes and (2) the aggregate
principal amount of all Loans funded other than through the issuance of
Commercial Paper Notes (such sum, the "Facility Amount") would exceed an amount
equal to the lesser of (a) $190,000,000, as such amount may be increased from
time to time with the consent of the Administrative Agent (which consent shall
be in the Administrative Agent's sole and absolute discretion) following the
written request of the
Borrower and payment by the Borrower of the Increase Fee (the "Maximum Facility
Amount") and (b) the product of the Maximum Advance Percentage and the Net
Balance (the "Capital Limit").
SECTION 1.02 Borrowing Procedures.
(a) Notice of Borrowing. Each Borrowing by Borrower shall be
made on a Business Day on notice in writing from Borrower to the
Administrative Agent (with a copy to the Collateral Agent) received by
the Administrative Agent not later than 11:00 a.m. (
New York City time)
on the Business Day preceding the date of such proposed Borrowing. Each
such notice of a proposed Borrowing shall be substantially in the form
of Exhibit 1.02 (each, a "Borrowing Notice") and shall specify the
amount of such Borrowing and the date on which such Borrowing is to be
made. Each Borrowing made pursuant to this Section 1.02 shall have an
initial principal amount of at least $1,000,000 and shall be in
integral multiples of $1,000, unless otherwise approved by the
Administrative Agent. Any Borrowing Request given by Borrower pursuant
to this Section 1.02 shall be irrevocable and binding on Borrower.
(b) Funding of Borrowing. On each Borrowing Date, upon
satisfaction of the applicable conditions set forth in Article V,
Lender shall deposit in same day funds by wire transfer to the Trust
Collection Account an amount equal to the requested Borrowing. After
acknowledgement of receipt by the Borrower of such funds, the
Collateral Agent will transfer such funds into one or more Vault
Collection Accounts specified by the Check-Xxxxxx by written
instructions (with a copy to the Lender).
(c) Interest Periods. In the Borrowing Notice and prior to the
end of each existing Interest Period for a Loan, the Borrower may
request an Interest Period for the applicable Loan of up to 30 days
subject to the Administrative Agent's approval; provided, however, that
following a Termination Event, Event of Default, Check-Xxxxxx Event of
Default or Termination Date, the Administrative Agent shall select the
Interest Periods in its sole discretion.
SECTION 1.03 Security Interest. The Borrower hereby grants to the
Collateral Agent, for the benefit of the Secured Parties, a first priority
continuing lien and security interest in all of the assets of the Borrower
(including, without limitation, all of the Assets, all of the Borrower's cash
and currency, accounts, chattel paper, instruments, general intangibles, deposit
accounts, inventory, investment property, equipment, rights under Sections 1.04
hereof and all other personal property of Borrower), whether now owned or
hereafter acquired, wherever located, and including proceeds of the foregoing
(collectively, the "Pledged Collateral"). For the avoidance of doubt, the above
grant shall include all amounts due and payable by any Person (including,
without limitation, Approved Vault Banks, Approved Banks and Approved Couriers)
to the Borrower. Such liens and security interests shall secure all of
Borrower's obligations hereunder, including, without limitation, the payments of
principal of, and interest on, the Note (and the Loans evidenced thereby) and
all Indemnified Amounts.
SECTION 1.04 Use of Proceeds; Provision of Cash. The Borrower covenants
and agrees to use all proceeds of the Loans solely to provide Cash to the SSMs
for use by the Check-
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Xxxxxx in cashing Checks in the SSMs. The Check-Xxxxxx hereby covenants and
agrees that the Borrower shall be the sole and exclusive source of cash for the
SSMs, and until the Final Payout Date hereunder it will not permit cash from any
other cash provider to be placed in the SSMs. No self-service check machine
included as an SSM hereunder during any Usage Period shall be removed as an SSM
hereunder without the prior written consent of the Administrative Agent. Prior
to the initial Usage Period, Borrower will provide Administrative Agent a
Schedule of the SSMs for such Usage Period to be attached hereto as Schedule II
consisting of not less than 145 SSMs, indicating the locations thereof. Such
locations shall be deemed acceptable unless Administrative Agent objects to any
specific location within ten (10) Business Days of receipt of the proposed
Schedule of SSMs. SSMs will not be relocated during a Usage Period. If for any
reason Borrower cannot satisfy all the requirements of this Agreement as to a
particular SSM, Borrower shall have the right to seek an alternative source of
Cash for such SSM, provided the total number of SSM's subject hereto shall not
be less than 145 during such Usage Period. Prior to the commencement of any
subsequent Usage Period, Borrower will provide Administrative Agent a Schedule
of the SSMs for such Usage Period to be attached as a replacement Schedule II,
consisting of not less than 145 SSMs, indicating the locations thereof, with any
change in such Schedule from the prior Usage Period subject to approval by the
Administrative Agent. The Borrower covenants and agrees at all times to ensure
that Schedule III contains a complete and accurate listing of the Excluded SSMs
which will not be funded by the Borrower with Cash (any update to which shall be
delivered to the Administrative Agent). ACE is expressly authorized to seek
alternative sources of cash for the Excluded SSMs. The Check-Xxxxxx hereby
appoints the Borrower as its cash provider for all SSMs, and the Borrower hereby
accepts such appointment. At no time shall any funds from other cash providers
(which, for the avoidance of doubt, shall not include funds received in respect
of Checks) be placed in any SSM or the Trust Collection Account, any Vault
Collection Account, any account created pursuant to Section 3.01 or any other
account created in connection with this Agreement; provided, however, that for
so long as the Electronic Presentment Agreement is in effect, funds representing
checks cashed at the 10 Excluded SSMs funded by Texas Capital Bank, National
Association's vault cash (the "Texas Capital Funds") and subject to the
Electronic Presentment Agreement shall be permitted to be deposited into the
Trust Collection Account for a period not to exceed one Business Day from
deposit therein. The Collateral Agent shall wire to the account specified by
Texas Capital Bank, National Association on each Business Day the amount
specified by the Check-Xxxxxx as Texas Capital Funds in a notice to the
Collateral Agent (with a copy to the Administrative Agent). The Collateral Agent
will cease transferring such funds to Texas Capital Bank, National Association
upon receipt of notice from the Administrative Agent to such effect and, after
receipt of such notice, shall only so transfer funds upon the instruction of the
Administrative Agent. The Administrative Agent shall deliver a copy of any
notice of the type described in the preceding sentence to the Check-Xxxxxx
simultaneously with its delivery to the Collateral Agent. As compensation to the
Borrower for the provision of cash inventory hereunder, the Check-Xxxxxx shall
pay to the Borrower the Cash Inventory Provision Fee as provided herein.
The Check-Xxxxxx hereby acknowledges and agrees that all right, title
and interest in and to any and all Cash provided by the Borrower for use in the
SSMs and all Checks are and shall remain the sole and separate property of the
Borrower and under no circumstances the property of the Check-Xxxxxx. The
Check-Xxxxxx expressly acknowledges (i) that the Cash supplied to the SSMs is
not, and is not intended to be, a loan from the Borrower to the Check-Xxxxxx and
(ii)
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all Checks cashed by the Check-Xxxxxx shall remain the sole and separate
property of the Borrower. The Check-Xxxxxx shall acquire no right, title or
interest in any Cash, Checks or the proceeds thereof wherever located,
including, without limitation, Checks or Cash (whether in the form of currency
or otherwise) in the possession of an Approved Courier, any other agent or
subcontractor of the Check-Xxxxxx or at an SSM, in the Vault Collection Account,
or in any other account created in connection with this Agreement or any other
Transaction Document.
ARTICLE II
NOTE
SECTION 2.01 Note. The Loans shall be evidenced by a promissory note
(as from time to time supplemented, extended, amended or replaced, the "Note"),
substantially in the form set forth in Exhibit 2.01, with appropriate
insertions, dated the date hereof, payable to the order of the Lender in the
initial maximum principal amount of $190,000,000 on the Maturity Date. The
entire Facility Amount shall be due and payable on each Usage Period Maturity
Date. If the Maximum Facility Amount is increased pursuant to Section 1.01, the
Note shall be replaced by a promissory note, substantially in the form of the
existing Note, with appropriate changes to reflect an increased maximum
principal amount to reflect the increased Maximum Facility Amount. Upon receipt
of a replacement Note satisfactory to Lender, Lender shall cause the existing
Note to be returned to the Borrower. Principal of, and interest on, the Loans
shall be paid from time to time as set forth in Section 3.03. The Borrower shall
have the right to prepay all or any portion of the Loans in full at any time,
provided that the Borrower (i) notifies the Administrative Agent of such
intention to prepay the Loans in a notice delivered at least 5 Business Days
prior to the proposed date of repayment and (ii) otherwise complies with the
requirements of this Section 2.01. Any such prepayment under this Section 2.01
shall be accompanied by all accrued and unpaid interest on the Loans and all
other amounts then due hereunder (including all amounts due and payable under
Section 4.02). Upon any prepayment in full of the Loan in conjunction with the
termination of this Agreement prior to the Maturity Date, the Check-Xxxxxx
agrees to pay the Lender a prepayment fee (the "Prepayment Fee") in accordance
with the terms of the Fee Letter, provided that no Prepayment Fee shall be
payable in the event of an optional redemption pursuant to Section 2.06. The
Administrative Agent shall record in its records, or at its option on the
schedule attached to the Note, the date and amount of each Loan made hereunder,
the interest rate with respect thereto (as determined under Section 2.02), each
repayment thereof, and the other information provided for thereon. The aggregate
unpaid principal amount so recorded shall be rebuttable presumptive evidence of
the principal amount owing and unpaid on the Note. The failure so to record any
such information or any error in so recording any such information shall not,
however, limit or otherwise affect the actual obligations of the Borrower
hereunder or under the Note to repay the principal amount of all Loans, together
with all interest accruing thereon, as set forth in this Agreement.
SECTION 2.02 Interest on Loans. Each Loan shall accrue interest during
each Interest Period at a rate equal to the Interest Rate, as in effect for such
Interest Period for such Loan, which interest shall be payable as set forth in
Section 3.03.
SECTION 2.03 General Procedures. No outstanding principal balance of
the Loans shall be considered reduced by any allocation, set-aside or
distribution of any portion of
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Collections or any other payment unless such Collections or other payment shall
have been actually delivered to the applicable Secured Party pursuant hereto. No
principal or interest or other amounts hereunder shall be considered paid by any
distribution of any portion of Collections or any other payment if at any time
such distribution or payment is rescinded or must otherwise be returned for any
reason. No provision of this Agreement shall require the payment or permit the
collection of interest in excess of the maximum permitted by Applicable Law.
SECTION 2.04 Commitment Fee. In consideration of the Lender's
Commitment under this Agreement, the Borrower will pay an Annual Commitment Fee
to the Agent for the benefit of the Lender annually on the first day of each
Usage Period pursuant to the Fee Letter.
SECTION 2.05 Transfer and Exchange of Notes. At the option of the
holder of a Note in connection with any permitted transfer or assignment of such
Note, Notes may be exchanged for other Notes in authorized denominations of a
like aggregate principal amount upon surrender of the Notes to be exchanged to
the Borrower. Upon surrender for the transfer or exchange of any Note, the
Borrower shall deliver, in the name of the designated transferee or transferees,
one or more new Notes in authorized denominations of a like aggregate principal
amount dated the date of issuance thereof. Every Note presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer duly executed by the holder of such Note or his attorney
duly authorized in writing. No service charge shall be made for any registration
of transfer or exchange of Notes.
SECTION 2.06 Optional Redemption. On any Business Day after April 15th
during any Usage Period, the Borrower shall have the right, but not the
obligation, to repay the Facility Amount in whole, but not in part, on the
Optional Redemption Date, provided that immediately prior to such repayment the
Net Balance is less than 10% of the greatest Net Balance during such Usage
Period and in connection with such repayment the Borrower pays in full all other
obligations under the Transaction Documents due and payable or accrued through
such date (including any amounts described in Section 4.02). Following an
Optional Redemption Date, the Borrower will no longer be able to request
additional Borrowings during such Usage Period and the Lender's commitment to
make Loans shall be suspended until the commencement of the next following Usage
Period, if any.
ARTICLE III
SETTLEMENTS
SECTION 3.01 Accounts; Investments.
(a) Accounts.
On or before the first Borrowing Date, the Borrower shall
establish the following accounts:
(i) the Trust Collection Account; and
(ii) the Reserve Account.
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On or before the first Borrowing Date, there shall be
established, in the name of the Collateral Agent or in the name of the
Borrower, for the benefit of the Collateral Agent, a deposit account
subject, in the case of any account in the name of the Borrower, to an
Approved Vault Bank Agreement (each, a "Vault Collection Account") at
each Approved Vault Bank (i) into which the Approved Vault Bank shall
accept transfers of the proceeds of Loans and from which the applicable
Approved Vault Bank shall distribute funds to the Trust Collection
Account in accordance with instructions received by such Approved Vault
Bank from the Collateral Agent (pursuant to instructions received from
the Borrower (or its authorized agents, including the Check-Xxxxxx)) in
accordance with the terms of the Transaction Documents and the
applicable Approved Vault Bank Agreement, and (ii) into which the
applicable Approved Vault Bank shall accept transfers of funds in
respect of Collections and from which the applicable Approved Vault
Bank shall distribute funds to an Approved Courier for delivery to
specified SSMs in accordance with instructions received by such
Approved Vault Bank from the Borrower (or its authorized agents,
including the Check-Xxxxxx) in accordance with the terms of the
Transaction Documents and the applicable Approved Vault Bank Agreement,
until such time as the Collateral Agent instructs such Approved Vault
Bank to cease such distribution of funds and to distribute funds then
on deposit in the applicable Vault Collection Account only in
accordance with further instructions from the Collateral Agent. The
initial Vault Collection Accounts shall be as set forth on Schedule I.
The parties hereto hereby authorize and direct the Collateral Agent to
establish in the name of the Collateral Agent on behalf of the Secured
Parties the Vault Collection Accounts listed on Schedule I and to
execute and deliver the account agreements and all ancillary documents
relating to such Vault Collection Accounts, in each case in the form
prepared by the Check-Xxxxxx and approved by the Administrative Agent.
For so long as the Electronic Presentment Agreement is in effect,
Collections in respect of the Checks shall be deposited directly into
the Trust Collection Account. If a Vault Collection Account is not
subject to an Approved Vault Bank Agreement, it shall be subject to an
account agreement in form and substance satisfactory to Administrative
Agent. Until such time as such an account agreement is entered into
with respect to any Vault Collection Account, notwithstanding any
provision of this agreement to the contrary, all transfers and
distributions of funds with respect any such account shall be made only
in accordance with instructions from the Collateral Agent.
Prior to adding any additional Vault Collection Accounts, Borrower shall provide
an opinion of counsel with respect to perfection issues substantially in the
form of the opinion issued pursuant to Section 5.01(f) prior to the initial
Borrowing and otherwise acceptable to the Administrative Agent. Borrower shall
provide the Collateral Agent and the Administrative Agent with an updated
Schedule I prior to adding any additional Vault Collection Accounts.
All such amounts in the Vault Collection Accounts, the Trust Collection
Account, and the Reserve Account shall be held by each Approved Vault Bank and
the Collateral Agent (in the case of the Trust Collection Account and the
Reserve Account), as the case may be, in such accounts as part of the Assets as
herein provided, subject to withdrawal by, or at the direction of, the
Collateral Agent, Borrower or Check-Xxxxxx, in accordance with, and for the
purposes specified in the provisions of, this Agreement. The Vault Collection
Accounts, the Trust
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Collection Account, and the Reserve Account are referred to collectively herein
as the "Transaction Accounts".
(b) Investments. All or a portion of the amounts in the Trust
Collection Account and the Reserve Account (together, the "Trust
Accounts") shall be invested and reinvested by the Collateral Agent (as
directed by the Borrower or the Check-Xxxxxx on its behalf as its
authorized agent) in one or more Eligible Investments.
(c) Maturity of Investments. No investment of any amount held
in the Trust Accounts shall mature later than the earlier of (i) the
Business Day immediately preceding the Settlement Date which is
scheduled to occur immediately following the date of investment and
(ii) one week from the date of investment.
(d) Form of Investment. Any investment of any funds in the
Trust Accounts shall be made under the following terms and conditions:
(i) each such investment shall be made in the name of
the Collateral Agent (in its capacity as such) or in the name
of a nominee of the Collateral Agent, and
(ii) any certificate or other instrument evidencing
such investment shall be delivered directly to the Collateral
Agent and endorsed in the name of the Collateral Agent and the
Collateral Agent shall have sole possession of such
instrument.
(e) Collateral Agent Not Liable The Collateral Agent shall not
in any way be held liable by reason of any insufficiency in the Trust
Accounts resulting from losses on investments made in accordance with
the provisions of this Section 3.01 (but the Collateral Agent shall at
all times remain liable for its own debt obligations, if any,
constituting part of such investments). The Collateral Agent shall not
be liable for any investment made by it in accordance with this Section
3.01 on the grounds that it could have made a more favorable
investment.
(f) Reserve Account. If on any applicable Business Day amounts
are not available in the Trust Collection Account (A) to make all
distributions set forth in Section 3.03(c)(i) through (iii) or (B) to
make all distributions set forth in Section 3.03(d)(i) through (viii),
as applicable, the Collateral Agent shall withdraw funds from the
Reserve Account and deposit into the Trust Collection Account the
lesser of (i) such shortfall and (ii) the amounts on deposit in the
Reserve Account. If after making all distributions set forth in Section
3.03(c) and (d) on a Business Day the amount on deposit in the Reserve
Account exceeds the Required Reserve Level, any such excess shall be
released by the Collateral Agent to the Borrower.
(g) Funding Cessation after Licensing Inquiry. Upon receipt of
a Licensing Inquiry, if, in the reasonable judgment of the
Administrative Agent it would be inadvisable for the Borrower to
continue to provide Cash for SSMs in the jurisdiction whose
Governmental Authority generated the Licensing Inquiry without the
Borrower and/or the Check-Xxxxxx first (i) complying with that
jurisdiction's Applicable Law
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regarding licensing or (ii) delivering an opinion of counsel acceptable
to the Administrative Agent confirming that compliance with such
Applicable Law is not required based on the activities of the Borrower
and the Check-Xxxxxx contemplated by the Transaction Documents, then
upon written notice from the Administrative Agent (x) ACE will
immediately cease providing the instructions to either (I) the
Collateral Agent or (II) the applicable Approved Vault Bank, in each
case as contemplated by Section 8.01(f) to transfer funds to any Vault
Collection Account in such jurisdiction and (y) the Collateral Agent,
ACE and/or the Borrower, as may be required by the applicable account
agreement, will immediately cease making any transfers of funds to any
Vault Collection Account in such jurisdiction and ACE, the Collateral
Agent and/or the Borrower, as may be required by the applicable account
agreement, will instruct any applicable Approved Vault Bank to cease
any distribution of funds and to distribute funds then on deposit in
any applicable Vault Collection Account only in accordance with further
instructions from the Collateral Agent.
SECTION 3.02 Collection of Moneys. If at any time Borrower or the
Check-Xxxxxx shall receive any payment on or in respect of any Asset, it shall
hold such payment in trust for the benefit of the Collateral Agent and the other
Secured Parties, shall segregate such payment from the other property of
Borrower or the Check-Xxxxxx, as the case may be, and shall, within one Business
Day of receipt, deliver such payment in the form received to the Collateral
Agent for deposit into the Trust Collection Account.
SECTION 3.03 Settlement.
(a) Deposit of Collections. Each of the Check-Xxxxxx and the
Borrower covenants and agrees to cause all Collections to be deposited
directly into either the applicable Vault Collection Account or the
Trust Collection Account on each Business Day.
(b) Transfer of Collections. The Borrower (or its authorized
agents, including the Check-Xxxxxx) shall instruct the Collateral Agent
to transfer all Collections from the relevant Vault Collection Accounts
into the Trust Collection Account to the extent necessary to make the
distributions set forth in Sections 3.03(d), (e) and (f). The
Collateral Agent shall make such transfers in accordance with
instructions from the Borrower or its authorized agents.
(c) Daily Settlement Procedures. On each Business Day during
the Usage Period that is not a Settlement Date or the Usage Period
Maturity Date, amounts on deposit in the Trust Collection Account
(including transfers from the Reserve Account pursuant to Section
3.01(f)) will be applied by the Collateral Agent at the written
direction of the Check-Xxxxxx (or, absent such direction, at the
direction of the Collateral Agent) in the following order of priority:
(i) To the Administrative Agent, for the benefit of
the Lender, accrued and unpaid interest (in accordance with
Section 2.02) with respect to any Loan for which such Business
Day is the last day of the applicable Interest Period for such
Loan;
8
(ii) To set aside in a sub-account of the Trust
Collection Account an amount equal to the Accrued Facility
Costs (net of amounts paid in clause (i) above) for transfer
at the further direction of the Administrative Agent (whether
on such day or on a subsequent day);
(iii) To set aside in the Trust Collection Account or
repay any Loans for which such Business Day is the last day of
the applicable Interest Period for such Loans in an amount
necessary, if any, to maintain the Advance Percentage equal to
the Maximum Advance Percentage;
(iv) To deposit to the Reserve Account the amount (if
any) required for the amount on deposit in the Reserve Account
to be equal to the Required Reserve Level; and
(v) Any remaining amounts, at the Borrower's
election, (A) to a Vault Collection Account, (B) to the
reduction of the Facility Amount, (C) to remain in the Trust
Collection Account, (D) to ACE in payment under the Company
Note or (E) to the Borrower; provided, however, no such
distribution shall be made if after making such distribution,
the Advance Percentage would be greater than the Maximum
Advance Percentage.
(d) Monthly Settlement Procedures. All amounts on deposit in
the Trust Collection Account (including transfers from the Reserve
Account pursuant to Section 3.01(f)) will be applied in the following
order of priority by the Collateral Agent at the written direction of
the Check-Xxxxxx (or, absent such direction, at the direction of the
Collateral Agent) on each Settlement Date prior to the Usage Period
Maturity Date and prior to the occurrence of a Termination Event or the
Termination Date:
(i) To the Check-Xxxxxx, if the Check-Xxxxxx is not
ACE or an affiliate of ACE, the accrued and unpaid Servicing
Fee;
(ii) To the Administrative Agent, for the benefit of
the Lender, accrued and unpaid interest (in accordance with
Section 2.02) and Facility Fees with respect to any Loan for
which such Settlement Date is the last day of the applicable
Interest Period for such Loan;
(iii) To the Collateral Agent, the accrued and unpaid
Collateral Agent Fee;
(iv) To each Approved Courier, the accrued and unpaid
Approved Courier Fee;
(v) To each Approved Vault Bank, the accrued and
unpaid Approved Vault Bank Fee (to the extent not deducted by
the applicable Approved Vault Bank);
(vi) If the Check-Xxxxxx is ACE, and no Check-Xxxxxx
Event of Default has occurred, to ACE, the accrued and unpaid
Servicing Fee;
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(vii) To set aside in the Trust Collection Account or
pay down the Facility Amount (together with any amounts
described in Section 4.02 with respect to such repayment) in
an amount necessary, if any, to maintain the Advance
Percentage equal to the Maximum Advance Percentage;
(viii) To deposit to the Reserve Account the amount
(if any) required for the amount on deposit in the Reserve
Account to be equal to the Required Reserve Level;
(ix) To the applicable Secured Parties, any other
amounts due and owing to the Secured Parties pursuant to the
Transaction Documents;
(x) If the Check-Xxxxxx is ACE, to the Check-Xxxxxx,
the accrued and unpaid Servicing Fee to the extent not paid in
(vi) above; and
(xi) Any remaining amounts, at the Borrower's
election, (A) to a Vault Collection Account, (B) to the
reduction of the Facility Amount, (C) to remain in the Trust
Collection Account, (D) to ACE in payment under the Company
Note or (E) to the Borrower; provided, however, no such
distribution shall be made if after making such distribution,
the Advance Percentage would be greater than the Maximum
Advance Percentage.
(e) Usage Period Maturity Date and Termination Settlement
Procedures. All amounts on deposit in the Trust Collection Account and
the Reserve Account will be applied by the Collateral Agent at the
written direction of the Check-Xxxxxx (or, absent such a direction, at
the direction of the Collateral Agent) in the following order of
priority on the Usage Period Maturity Date and on any Business Day
after the occurrence of a Termination Event or a Termination Date:
(i) To the Check-Xxxxxx, if the Check-Xxxxxx is not
ACE or an affiliate of ACE, the accrued and unpaid Servicing
Fee;
(ii) To the Administrative Agent for the benefit of
the Lender, accrued and unpaid interest (in accordance with
Section 2.02) and Facility Fees in respect of all Loans;
(iii) To the Collateral Agent, the accrued and unpaid
Collateral Agent Fee;
(iv) To each Approved Courier, the accrued and unpaid
Approved Courier Fee;
(v) To each Approved Vault Bank, the accrued and
unpaid Approved Vault Bank Fee (to the extent not deducted by
the applicable Approved Vault Bank);
(vi) To the Lender in an amount necessary to reduce
the Facility Amount to zero;
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(vii) To the applicable Secured Parties, any other
amounts due and owing to the Secured Parties pursuant to the
Transaction Documents;
(viii) If the Check-Xxxxxx is ACE, to the
Check-Xxxxxx, the accrued and unpaid Servicing Fee;
(ix) First, to the Borrower, the accrued and unpaid
Supplemental Cash Inventory Provision Fee and second, to the
Check-Xxxxxx, the accrued and unpaid Check-Cashing Payment to
the extent of funds available therefor; and
(x) To the Borrower, any remaining amounts.
SECTION 3.04 Payments and Computations, Etc
(a) Payments. All amounts to be paid by the Borrower, ACE or
the Check-Xxxxxx to any Secured Party hereunder shall be paid or
deposited in accordance with the terms hereof no later than 2:00 p.m.
(
New York,
New York time) on the day when due in lawful money of the
United States of America in same day funds to the accounts specified by
the applicable Secured Parties in writing.
(b) Late Payments. Borrower, ACE or Check-Xxxxxx, as
applicable, shall, to the extent permitted by law, pay to the
applicable Secured Party interest on all amounts not paid or deposited
by such party when due hereunder at 2% per annum above the Base Rate
(the "Default Rate"), payable on demand; provided, however, that such
interest rate shall not at any time exceed the maximum rate permitted
by Applicable Law.
(c) Method of Computation. All computations of interest, yield
and any fees payable hereunder shall be calculated on the basis of a
year of 360 days, for the actual days elapsed; provided, however, that
interest or yield calculated at the Base Rate shall be on the basis of
a year of 365 days for the actual number of days elapsed.
(d) Check-Cashing Payment. Prior to the Final Payout Date, the
Check-Cashing Payment shall be paid to the Check-Xxxxxx solely in
accordance to the priority of payments set forth in Section 3.03(e)(ix)
and no such Check-Cashing Payment shall be considered defaulted or
delinquent if not paid solely because funds are not available therefor
in accordance with Section 3.03(e)(ix). Following the Final Payout
Date, the accrued and unpaid Check-Cashing Payment shall be due and
payable in full.
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ARTICLE IV
YIELD PROTECTION
SECTION 4.01 Yield Protection.
(a) If after the date hereof (i) Regulation D of the Board of
Governors of the Federal Reserve System or (ii) any Regulatory Change:
(A) shall subject an Affected Party to any tax, duty
or other charge with respect to any Loan owned or funded by
it, or any obligations or right to make Loans or to provide
funding therefor, or shall change the basis of taxation of
payments to the Affected Party of any interest or principal
owed with respect to Loans funded in whole or in part by it or
any other amounts due under this Agreement in respect of the
Loans funded by it or its obligations or rights, if any, to
make Loans or to provide funding therefor (except for changes
in the rate of tax on the overall net income of such Affected
Party imposed by the United States of America or by any
jurisdiction in which such Affected Party is organized or
maintains its principal executive office or an office from
which it makes Loans); or
(B) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed by
the Federal Reserve Board, but excluding any reserve included
in the determination of interest on the Loans), special
deposit or similar requirement against assets of any Affected
Party, deposits or obligations with or for the account of any
Affected Party or with or for the account of any Affiliate (or
entity deemed by the Federal Reserve Board to be an Affiliate)
of any Affected Party (to the extent such Affiliate is
providing funding, liquidity or credit enhancement for the
Loans), or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or
required or requested or directed to be maintained by any
Affected Party; or
(D) shall change the rate for, or the manner in which
the Federal Deposit Insurance Corporation (or a successor
thereto) assesses deposit insurance premiums or similar
charges; or
(E) shall impose any other condition affecting any
Loan owned or funded in whole or in part by any Affected
Party, or its obligations or rights, if any, to make Loans or
to provide funding therefor;
and the result of any of the foregoing is or would be
(x) to increase the cost to or to impose a cost on (i) an
Affected Party funding, purchasing, making or maintaining any Loan, any
purchases, reinvestments, or loans or other extensions of credit
hereunder or under the Liquidity Agreement, or any commitment of such
Affected Party with respect to any of the foregoing, or (ii) the
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Administrative Agent or Liquidity Agent for continuing its or
Borrower's relationship with Lender,
(y) to reduce the amount of any sum received or receivable by
an Affected Party under this Agreement or under the Liquidity Agreement
with respect thereto, or
(z) in the good faith determination of such Affected Party, to
reduce the rate of return on the capital of an Affected Party as a
consequence of its obligations hereunder or arising in connection
herewith to a level below that which such Affected Party could
otherwise have achieved,
then on the first Settlement Date after demand by such Affected Party (which
demand shall be accompanied by a statement setting forth the basis of such
demand), Borrower shall pay directly to such Affected Party such additional
amount or amounts as will compensate such Affected Party for such additional or
increased cost or such reduced return.
(b) Each Affected Party will promptly notify Borrower and the
Administrative Agent of any event of which it has knowledge which will
entitle such Affected Party to compensation pursuant to this Section
4.01. Failure or delay in giving such notification shall not constitute
a waiver of such Affected Party's right to such compensation.
(c) In determining any amount provided for or referred to in
this Section 4.01, an Affected Party may use any reasonable averaging
and attribution methods that it (in its sole discretion) shall deem
applicable. Any Affected Party when making a claim under this Section
4.01 shall submit to Borrower a statement as to such increased cost or
reduced return (including calculation thereof in reasonable detail),
which statement shall, in the absence of demonstrable error, be
conclusive and binding upon Borrower.
(d) Upon receipt by an Affected Party of a refund or credit
for any amounts paid by the Borrower under this Section 4.01, such
Affected Party shall pay to Borrower an amount equal to the amount of
such refund or credit plus any interest received by or credited to such
Affected Party with respect to such refund or credit.
SECTION 4.02 Funding Losses. In the event that any Affected Party shall
incur any loss or expense (including any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Affected Party to make or maintain any liquidity funding under the Liquidity
Agreement) as a result of (i) any payment being made on any day other than on
the last day of the applicable Interest Period, or (ii) any Borrowing not being
made in accordance with a request therefor under Section 1.02, then, upon
written notice from the Administrative Agent or the Liquidity Agent to Borrower
and Check-Xxxxxx, Borrower shall pay to the applicable Affected Party the amount
of such loss or expense. Such written notice (which shall include calculations
in reasonable detail) shall, in the absence of manifest error, be conclusive and
binding upon Borrower.
SECTION 4.03 Taxes. (a) Any and all payments by the Borrower or the
Check-Xxxxxx hereunder shall be made free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, net income
taxes that are imposed by the United States and franchise taxes and net
13
income taxes that are imposed by the state or foreign jurisdiction under the
laws of which the payee is organized or conducts business or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower or the Check-Xxxxxx shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to the Lender or any Affected
Party, (i) the Borrower or the Check-Xxxxxx, as the case may be, shall make an
additional payment to the payee in an amount sufficient so that, after making
all required deductions (including deductions applicable to additional sums
payable under this section), the payee receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower or the
Check-Xxxxxx, as the case may be, shall make such deductions and (iii) the
Borrower or the Check-Xxxxxx, as the case may be, shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with Applicable Law.
(b) If the Lender or the applicable Affected Party is not
created or organized under the laws of the United States or a political
subdivision thereof, such Person shall, to the extent that it may then
do so under Applicable Laws and regulations, deliver to the Borrower
(with, in the case of any Affected Party, a copy to the Administrative
Agent) (i) within thirty (30) days after the date hereof, or, if later,
the date on which such Person becomes an Affected Party pursuant to
this Agreement two (or such other number as may from time to time be
prescribed by Applicable Laws or regulations) duly completed copies of
IRS Form 4224 or Form 1001 (or any successor form or other certificate
or statement which may be required from time to time by the relevant
United States taxing authorities or Applicable Law or regulation), as
appropriate, to permit the Borrower to make payments hereunder for the
account of such Person, as the case may be, without deduction or
withholding of income taxes and (ii) upon the obsolescence of or after
the occurrence of any event requiring a change in any form or
certificate previously delivered pursuant to this Section 4.03(b),
copies (in such numbers as may from time to time be prescribed by
Applicable Law or regulation) of such additional, amended or successor
form, certificate or statement as may be required under Applicable Law
or regulation to permit the Borrower to make payments hereunder for the
account of such Person without deduction or withholding of income
taxes.
(c) For any period with respect to which the Lender or such
Affected Party has failed to provide the Borrower with the appropriate
form, certificate or statement described in clause (b) of this section
(except if such failure is due to a change in law occurring after the
date of this Agreement), such Person, as the case may be, shall not be
entitled to indemnification under clause (a) of this Section with
respect to any Taxes.
(d) Within thirty (30) days of the written request of the
Borrower therefor, the Lender or such Affected Party, as appropriate,
shall execute and deliver to the Borrower such certificates, forms or
other documents which can be furnished consistent with the facts and
which are reasonably necessary to assist the Borrower in applying for
refunds of taxes remitted hereunder.
(e) If, in connection with an agreement or other document
providing liquidity support, credit enhancement or other similar
support to the Lender in connection with this Agreement or the funding
or maintenance of the Loans hereunder, the Lender is required
14
to compensate a bank or other financial institution providing such
liquidity support, credit enhancement or other similar support in
respect of taxes under circumstances similar to those described in this
section then upon written demand by the Lender, the Borrower or the
Check-Xxxxxx shall pay to the Lender such additional amount or amounts
as may be necessary to reimburse such Lender for any amounts paid by
it.
ARTICLE V
CONDITIONS OF BORROWINGS
SECTION 5.01 Conditions Precedent to Initial Borrowing. The initial
Borrowing hereunder is subject to the condition precedent that the
Administrative Agent shall have received, on or before the date of such
Borrowing, the following, each (unless otherwise indicated) dated such date and
in form and substance satisfactory to the Administrative Agent:
(a) A copy of the approval of the Board of Directors of the
Check-Xxxxxx approving this Agreement and the other Transaction
Documents to be delivered by it hereunder and the transactions
contemplated hereby, certified by its Secretary or Assistant Secretary;
(b) A good standing certificate for Borrower issued by the
Secretary of State of Delaware and a good standing certificate for the
Check-Xxxxxx issued by the Secretary of State of Texas;
(c) A certificate of the Secretary or Assistant Secretary of
each of the Check-Xxxxxx and the Borrower certifying the names and true
signatures of the officers authorized on its behalf to sign this
Agreement and the other Transaction Documents to be delivered by it
hereunder (on which certificate the Administrative Agent and the
Liquidity Agent may conclusively rely until such time as they shall
receive a revised certificate meeting the requirements of this Section
5.01(c));
(d) Execution copies of the organizational documentation of
Borrower and copies of the articles of incorporation and bylaws of
Check-Xxxxxx, in each case, certified by its Secretary or Assistant
Secretary;
(e) Acknowledgment copies of proper financing statements (Form
UCC-1), filed on or prior to the date of the initial Borrowing, naming
Borrower as the debtor and the Collateral Agent as the secured party
describing all of the assets of the Borrower filed in the state of
Delaware; copies of search reports listing all effective financing
statements that name Borrower as debtor and that are filed in the
jurisdictions in which filings were made pursuant to the preceding
clause and any other instruments or documents as may be necessary or
desirable (in the opinion of the Administrative Agent) to perfect the
Collateral Agent's interest in all Assets; copies of search reports
listing all effective financing statements that name ACE as debtor and
that are filed in Texas or other applicable States;
15
(f) Favorable opinions of counsel to Borrower and
Check-Xxxxxx, regarding such items as non-consolidation,
enforceability, required licensing and perfection of security
interests;
(g) Such powers of attorney as shall be necessary to enable
the Collateral Agent to collect all Cash and all other Assets;
(h) The Note, duly executed by Borrower;
(i) A pro forma Borrowing Base Report and a pro forma
Servicing Report, prepared in respect of the proposed initial
Borrowing;
(j) The Liquidity Agreement, duly executed by Lender, the
Liquidity Agent, each Liquidity Provider and the other parties thereto;
(k) Letters from the rating agencies then rating the
Commercial Paper Notes confirming that the existing ratings of the
Commercial Paper Notes will remain in effect after giving effect to the
transactions contemplated hereby;
(l) Execution copies of all agreements entered into by ACE or
the Borrower relating to the SSMs and the transportation of the Cash,
including, without limitation, copies of the executed (i) Approved
Courier Agreements and, if any, Approved Vault Bank Agreements (ii) the
AT Systems Agreement between the Borrower and AT Systems Inc., (iii)
the Xxxxxx Custodian Agreement between the Borrower and Xxxxxx, (iv)
lease agreements with respect to the SSMs, (v) the License Agreement
dated as of November 22, 2000 between ACE and H&R, together with
Addendum No. 1 thereto dated as of May 31, 2001 and (vi) the Joint
Marketing Agreement dated as of January 11, 2001 between ACE and H&R;
(m) Proof of insurance reasonably acceptable to the
Administrative Agent covering any theft, destruction, or other loss of
Cash while such Cash is located in an SSM naming the Collateral Agent
as loss payee;
(n) Executed copies of an acknowledgment substantially in the
form of Exhibit 5.01(n) hereto from each owner or lessor of any SSM
(including Diebold) and each maintenance provider (including Diebold
and Fujitsu Transaction Solutions Inc.);
(o) [RESERVED];
(p) Executed copies of an acknowledgment substantially in the
form of Exhibit 5.01(p) hereto from each agent bank for ACE (including
Xxxxx Fargo Bank Texas, National Association, Principal Life Insurance
Company, and Travelers Express Company, Inc.);
(q) Executed copies of an acknowledgment substantially in the
form of Exhibit 5.01(q) hereto from an Approved Tax Provider;
16
(r) Payment in full of the Annual Commitment Fee in respect of
the first Usage Period and all other amounts payable under the Fee
Letter on or prior to the date of the initial Borrowing;
(s) Confirmation satisfactory to the Administrative Agent that
the Borrower has deposited $1,000,000 into the Reserve Account;
(t) Such other documents, opinions and certificates as the
Administrative Agent may reasonably request;
(u) The Borrower shall have executed and delivered the Company
Note to the Check-Xxxxxx;
(v) The Borrower, the Check-Xxxxxx, H&R, Household Tax Masters
and Imperial Capital Bank shall have executed and delivered the
Electronic Presentment Agreement substantially in the form of Exhibit
5.01(v) hereto;
(w) The Borrower and the Collateral Agent shall have executed
and delivered the Account Control Agreement substantially in the form
of Exhibit 5.01(w) hereto; and
(x) The Collateral Agent and Texas Capital Bank, National
Association shall have executed and delivered the Intercreditor
Agreement substantially in the form of Exhibit 5.01(x) hereto.
SECTION 5.02 Conditions Precedent to All Borrowings. Each Borrowing
(including the initial Borrowing) hereunder shall be subject to the further
conditions precedent that on the date of such Borrowing the following statements
shall be true (and Borrower by accepting the amount of such Borrowing shall be
deemed to have certified that):
(a) the representations and warranties contained in Sections
6.01 and 6.02 are correct in all material respects on and as of such
day as though made on and as of such day (and shall be deemed to have
been made on such day);
(b) no event has occurred and is continuing, or would result
from such Borrowing, that constitutes an Event of Default, Check-Xxxxxx
Event of Default or Unmatured Event of Default;
(c) after giving effect to each proposed Borrowing, no Program
Deficiency will exist;
(d) the Termination Date has not occurred and no Termination
Event has occurred and is continuing;
(e) the Borrower shall have delivered an executed Borrowing
Notice (certified by any Vice President of the Borrower and by the
Check-Xxxxxx) to the Administrative Agent;
17
(f) the Check-Xxxxxx or the Borrower shall have delivered to
the Administrative Agent (i) a current list stating the identity of
each Approved Courier (with a contact person and telephone number) and
(ii) execution copies of all agreements relating to the SSMs;
(g) the Check-Xxxxxx or the Borrower shall have delivered to
the Administrative Agent copies of such executed written consents and
waivers from third parties as shall be necessary to ensure the
Collateral Agent's or each Approved Courier's unfettered access to the
Cash;
(h) no law, rule or regulation shall prohibit and no order,
judgment or decree of any Governmental Authority shall prohibit or
enjoin the making of such Borrowing;
(i) the Check-Xxxxxx shall have delivered to the
Administrative Agent electronic files presenting in detail satisfactory
to the Administrative Agent (i) the amount of Cash located in each SSM,
(ii) the status of all Checks which have been deposited in SSMs and
(iii) the status of all Checks presented to Approved Banks for payment;
and
(j) the Administrative Agent and Liquidity Agent shall have
received such other approvals, opinions and documents as they may
reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 Representations and Warranties of Borrower. Borrower
represents and warrants as follows:
(a) Organization and Good Standing. It has been duly organized
and is validly existing as a limited liability company in good standing
under the laws of the State of Delaware.
(b) Due Qualification. It is duly qualified to do business as
a foreign entity in good standing (if applicable), and has obtained all
necessary licenses and approvals (including, without limitation, any
license approvals or authorizations related to the cashing of checks),
in all jurisdictions in which the failure to obtain such
qualifications, licenses or approvals could reasonably be expected to
have a Material Adverse Effect.
(c) Power and Authority; Due Authorization. It (i) has all
necessary power, authority and legal right to (A) own its properties
and to conduct its business as such properties are presently owned and
such business is presently conducted, (B) execute and deliver the
Transaction Documents to which it is a party, (C) carry out the terms
of the Transaction Documents, and (D) borrow the Loans and grant a
security interest in its Assets on the terms and conditions herein
provided and (ii) has duly authorized by all necessary action the
execution, delivery and performance of this Agreement and the other
Transaction Documents to which it is a party and the borrowing of the
Loans and the granting of the security interest in its assets on the
terms and conditions herein provided.
18
(d) Binding Obligations. Each Transaction Document to which it
is a party constitutes a legal, valid and binding obligation of it
enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar
laws affecting the enforcement of creditors' rights generally or by
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(e) No Conflict. The consummation of the transactions
contemplated by the Transaction Documents and the fulfillment of the
terms thereof will not (i) conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without notice
or lapse of time or both) a default under, its organizational
documentation, or any indenture, loan agreement, mortgage, deed of
trust, or other agreement or instrument to which it is a party or by
which it or any of its properties is bound, (ii) result in the creation
or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, loan agreement, mortgage, deed of trust,
or other agreement or instrument, other than this Agreement, or (iii)
violate any Applicable Law applicable to it or any of its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best of its knowledge, threatened before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of any
Transaction Document, (ii) seeking to prevent the consummation of any
of the transactions contemplated by any Transaction Document, or (iii)
seeking any determination or ruling that could reasonably be expected
to have a Material Adverse Effect.
(g) Judgments. No injunction, decree or other decision has
been issued or made by any court, governmental agency or
instrumentality thereof that prevents, and to Borrower's knowledge no
threat by any person has been made that could reasonably be expected to
result in any such decision that would prevent, it from conducting a
significant part of its business operations.
(h) Government Approvals. No authorization or approval or
other action by, and no notice to or filing with, any Governmental
Authority is required for the due execution, delivery and performance
by it of any Transaction Document (other than the financing statements
referred to in Section 5.01(e)).
(i) Financial Condition. Since the date of its organization,
there has been no material adverse change in the financial condition,
business, business prospects or operations of the Borrower.
(j) Margin Regulations. The use of funds obtained by Borrower
under this Agreement will not conflict with or contravene any of
Regulations T, U or X promulgated by the Board of Governors of the
Federal Reserve System from time to time.
19
(k) Perfected Interest. Each Asset is owned by Borrower free
and clear of any Lien other than any Lien created under the
Transactions Documents for the benefit of the Collateral Agent. Except
for the filing of the financing statements referred to in Section 5.01,
no further action, including any filing or recording of any document,
is necessary in order to establish, protect and perfect the first
priority security interest of the Collateral Agent in the assets of
Borrower. No financing statement or other instrument similar in effect
covering any asset of Borrower or any interest therein is on file in
any recording office except such as may be filed (i) in connection with
any Lien arising solely as the result of any action taken by Collateral
Agent or (ii) in favor of the Collateral Agent, for the benefit of the
Secured Parties.
(l) Accurate Information. No Servicing Reports or other
information, exhibit, financial statement, document, book, record or
report furnished by or on behalf of Borrower to the Administrative
Agent or Liquidity Agent in connection with any of the Transaction
Documents was inaccurate in any material respect as of the date it was
or (except as otherwise disclosed to the Administrative Agent or
Liquidity Agent at such time) as of the date so furnished, or contained
any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not
materially misleading.
(m) Offices. The chief place of business and chief executive
office of Borrower are located at the address of Borrower identified on
the signature pages hereof and the offices where Borrower keeps all its
books, records and documents are located at such address (or at such
other locations, notified to the Administrative Agent in accordance
with Section 7.01(d), in jurisdictions where all action necessary to
maintain the Collateral Agent's first priority perfected interest in
the assets of Borrower has been taken and completed).
(n) Capital of Borrower. Borrower is solvent and has adequate
capital for its business and undertakings.
(o) Investment Company Act. Borrower is not, and is not
controlled by, an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended.
(p) Legal Names. Borrower has not been known by any legal
name, and has used no trade names, other than the name set forth on the
signature page hereto and has not been the subject of any merger or
other corporate reorganization that resulted in a change of name,
identity or structure or jurisdiction of organization.
(q) Taxes. Borrower has filed or caused to be filed all tax
returns which, to its knowledge, are required to be filed. Borrower has
paid or made adequate provisions for the payment of all taxes and all
assessments made against it or any of its property (other than any
amount of tax the validity of which is currently being contested in
good faith by appropriate proceedings and with respect to which
reserves in accordance with GAAP have been provided on the books of
Borrower), and no tax lien has been filed and, to
20
Borrower's knowledge, no claim is being asserted, with respect to any
such tax, fee or other charge.
SECTION 6.02 Representations and Warranties of the Check-Xxxxxx and
ACE. Each of the Check-Xxxxxx and ACE represents and warrants as follows:
(a) Organization and Good Standing. It has been duly organized
and is validly existing as a corporation under the laws of the state of
its formation.
(b) Due Qualification. It is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals (including, without limitation, any licenses,
approvals or authorizations related to the cashing of checks), in all
jurisdictions in which the failure to obtain such qualification,
licenses or approvals could reasonably be expected to have a Material
Adverse Effect.
(c) Power and Authority; Due Authorization. It (i) has all
necessary corporate power and authority to (A) own its properties and
to conduct its business as such properties are presently owned and such
business is presently conducted, (B) execute and deliver the
Transaction Documents to which it is a party, and (C) carry out the
terms of the Transaction Documents, and (ii) has duly authorized by all
necessary corporate action its execution, delivery and performance of
the Transaction Documents to which it is a party.
(d) Binding Obligations. Each Transaction Document to which it
is a party constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by the Transaction Documents and the fulfillment of the
terms thereof will not (i) conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without notice
or lapse of time or both) a default under, its organizational
documentation or any indenture, loan agreement, mortgage, deed of
trust, or other agreement or instrument to which it is a party or by
which it or any of its properties is bound, (ii) result in the creation
or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, loan agreement, mortgage, deed of trust,
or other agreement or instrument, other than this Agreement, or (iii)
violate any Applicable Law applicable to it or any of its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best of its knowledge, threatened before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of any
Transaction Document, (ii) seeking to prevent the consummation of any
of the transactions contemplated by any Transaction Document, or (iii)
seeking any determination or ruling that might have a Material Adverse
Effect.
21
(g) Government Approvals. Other than the filing of the UCC
financing statements described in Section 5.01 and other than as made
or obtained prior to the date hereof, no authorization or approval or
other action by, and no notice to or filing with, any Governmental
Authority is required for the due execution, delivery and performance
by it of any Transaction Document.
(h) Judgments. No injunction, decree or other decision has
been issued or made by any court, governmental agency or
instrumentality thereof that prevents, and to its knowledge no threat
by any person has been made that could be expected to result in any
such decision that would prevent, it from conducting a significant part
of its business operations other than the Consent Decree dated October
25, 2002 entered In the Matter of Ace Cash Express, Inc., Irving Texas,
Agent and Bank Service Provider for Goleta National Bank.
(i) Accurate Information. No Servicing Report or other
information, exhibit, financial statement, document, book, record or
report furnished by or on behalf of it or its Affiliates to the
Administrative Agent or the Liquidity Agent in connection with any of
the Transaction Documents was inaccurate in any material respect as of
the date it was dated or (except as otherwise disclosed to the
Administrative Agent and the Liquidity Agent at such time) as of the
date it was so furnished, or contained any material misstatement of
fact or omitted to state a material fact or any fact necessary to make
the statements contained therein not materially misleading.
(j) Offices. Its chief place of business and chief executive
office are located at the address identified on the signature pages
hereof, and the offices where it keeps all its books, records and
documents related to the Borrower and the Assets are located at such
addresses (or at such other locations, notified to the Administrative
Agent at least 30 days' prior to any such change).
(k) Servicing Programs. No license or approval is required for
the Collateral Agent's use of any program used by Check-Xxxxxx in the
servicing of the Assets, other than those which have been obtained (and
are assignable by the Check-Xxxxxx to the Collateral Agent or a
successor Check-Xxxxxx) and are in full force and effect.
(l) Taxes. Check-Xxxxxx has filed or caused to be filed all
tax returns which, to its knowledge, are required to be filed.
Check-Xxxxxx has paid or made adequate provisions for the payment of
all taxes and all assessments made against it or any of its property
(other than any amount of tax the validity of which is currently being
contested in good faith by appropriate proceedings and with respect to
which reserves in accordance with GAAP have been provided on the books
of Check-Xxxxxx), and no tax lien has been filed and, to Check-Xxxxxx'x
knowledge, no claim is being asserted, with respect to any such tax or
other governmental charge.
(m) Financial Condition. Since September 30, 2002, there has
been no material adverse change in its financial condition, business,
business prospects or operations.
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(n) Fee Compliance. Fees charged by ACE for use of the SSMs by
customers of an Approved Tax Provider comply with all Applicable Laws
governing such fees in the state in which such SSM is located.
ARTICLE VII
GENERAL COVENANTS OF THE BORROWER AND THE CHECK-XXXXXX
SECTION 7.01 Affirmative Covenants of Borrower. From the date hereof
until the Final Payout Date, Borrower will, unless the Administrative Agent and
the Liquidity Agent shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material respects
with all Applicable Laws (including any applicable licensing
requirements), including, without limitation, those with respect to the
Assets.
(b) Preservation of Existence. Preserve and maintain its
existence, rights, franchises and privileges in the jurisdiction of its
organization, and qualify and remain qualified in good standing as a
foreign entity in each jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and
qualification could reasonably be expected to have a Material Adverse
Effect.
(c) Audits. At any time and from time to time during regular
business hours, permit the Lender, the Administrative Agent, the
Liquidity Agent, the Collateral Agent and any of their respective
agents or representatives, (A) to examine and make copies of and
abstracts from all Borrower's books, records and documents (including,
without limitation, computer tapes and disks) in the possession or
under the control of Borrower, and (B) to visit the offices and
properties of Borrower for the purpose of examining such materials
described in clause (i)(A) above, and to discuss matters relating to
the Assets or Borrower's performance hereunder with any of the officers
or employees of Borrower having knowledge of such matters; provided,
however, that (x) prior to the occurrence of an Event of Default, such
reviews shall take place no more frequently than quarterly in the year
in which the first Usage Period falls and semi-annually thereafter and
(y) after the occurrence of an Event of Default, the frequency of such
reviews shall be at the Administrative Agent's sole discretion;
provided further that the maximum amount payable by the Borrower and
ACE for expenses associated with any such audits described in this
Section 7.01(c) and Section 7.04(c) shall be $20,000 per annum prior to
the occurrence of an Event of Default.
(d) Maintenance of Office; Location of Records. Keep its chief
place of business and chief executive office, and the offices where it
keeps its records, at the address of Borrower referred to in Section
6.01(m) or, upon 30 days' prior written notice to the Administrative
Agent, at such other locations in jurisdictions where all action
required to maintain the Collateral Agent's first priority perfected
interest in the assets of Borrower shall have been taken and completed.
23
(e) Keeping of Records and Books of Account. Maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing Assets in the
event of the destruction of the originals thereof), and keep and
maintain, all documents, books, records and other information
reasonably necessary or advisable for the collection of all Assets
(including, without limitation, records adequate to permit the daily
identification of the outstanding Assets) including, in each case,
electronic versions thereof.
(f) Use of Funds. Apply all Loan proceeds solely to provide
cash for use in SSMs for the purposes of cashing Checks.
(g) Compliance with Agreements. Comply with the terms of each
of the Approved Courier Agreements, Approved Vault Bank Agreements, all
agreements with Approved Tax Providers, the Electronic Presentment
Agreement and all agreements with Approved Banks, entered into in
connection with the transactions contemplated by the Transaction
Documents.
(h) Accurate Information. No Servicing Report or other
information, exhibit, financial statement, document, book, record or
report furnished or to be furnished by or on behalf of it or its
Affiliates to the Administrative Agent or the Liquidity Agent in
connection with any of the Transaction Documents was or will be
inaccurate in any material respect as of the date it was or will be
dated or (except as otherwise disclosed to the Administrative Agent and
the Liquidity Agent at such time) as of the date it was so furnished,
or contained or will contain any material misstatement of fact or
omitted or will omit to state a material fact or any fact necessary to
make the statements contained therein not materially misleading.
(i) Notice of Licensing Inquiry. Provide notice to the
Administrative Agent immediately upon becoming aware of any Licensing
Inquiry.
SECTION 7.02 Reporting Requirements of Borrower. From the date hereof
until the Final Payout Date, Borrower will, unless the Administrative Agent
shall otherwise consent in writing, furnish to the Administrative Agent and the
Liquidity Agent:
(a) Monthly/Quarterly Financial Statements. As soon as
available and in any event within 30 days after the end of each Monthly
Period during the period from January through May of each calendar year
and within 45 days (or 60 days in the case of the last quarter of each
fiscal year) after the end of each quarter of each fiscal year of
Borrower ending in March and June of each calendar year, copies of the
financial statements of Borrower prepared in conformity with GAAP
(except as to the absence of footnotes), duly certified by the
Borrower;
(b) ERISA. Promptly after the filing or receiving thereof,
copies of all reports and notices with respect to any Reportable Event
defined in Article IV of ERISA which Borrower files under ERISA with
the IRS, the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or which Borrower receives from the Pension Benefit
Guaranty Corporation;
24
(c) Event of Defaults. Immediately upon becoming aware of the
existence of any Event of Default or Unmatured Event of Default, a
written statement of an officer of Borrower setting forth details of
such event and the action that Borrower proposes to take with respect
thereto;
(d) Termination of Other Agreements. Immediately upon
receiving notice of, or becoming aware of, the cancellation or
termination of any Approved Courier Agreement, Approved Vault Bank
Agreement or insurance policy covering the Cash, a copy of such notice
or notice of such cancellation or termination;
(e) Litigation and Insurance Claims. As soon as possible and
in any event within two Business Days of Borrower's knowledge thereof,
notice of (i) any litigation, investigation or proceeding which may
exist at any time which could reasonably be expected to have a Material
Adverse Effect, (ii) any material adverse development in previously
disclosed litigation and (iii) any material losses with respect to any
Cash for which claims have been or will be made by Borrower, the
Check-Xxxxxx or any Approved Courier; and
(f) Other. Promptly, from time to time, such other
information, documents, records or reports with respect to the assets
of Borrower or the condition or operations, financial or otherwise, of
Borrower as the Administrative Agent or the Liquidity Agent may from
time to time reasonably request in order to protect the interests of
the Secured Parties under or as contemplated by this Agreement.
SECTION 7.03 Negative Covenants of Borrower. From the date hereof until
the Final Payout Date, Borrower will not, without the prior written consent of
the Administrative Agent:
(a) Sales, Liens, Etc. Except as otherwise provided herein,
sell, assign (by operation of law or otherwise) or otherwise dispose
of, or create or suffer to exist any Lien (other than liens created
under the Transaction Documents) upon or with respect to, any of the
assets of Borrower (including, without limitation, the Assets), or any
interest therein, or any account to which any Collections of any Asset
are sent, the Trust Collection Account, any Vault Collection Account or
any right to receive income or proceeds from or in respect of any of
the foregoing. It being understood that Borrower may receive funds
distributed to it in accordance with Section 3.03 and distribute such
funds to its members in accordance with its limited liability company
agreement.
(b) Mergers, Acquisitions, Sales, etc. Be a party to any
merger or consolidation, or purchase or otherwise acquire all or
substantially all of the assets or stock of any class of, or
partnership or joint venture interest in, any other Person, or sell,
transfer, convey or lease all or any substantial part of its assets to
another Person.
(c) Incurrence of Indebtedness. Incur or permit to exist any
indebtedness or liability on account of deposits or advances or for
borrowed money or for the deferred purchase price of any property or
services, except (i) current accounts payable arising under the
Transaction Documents, (ii) the Loans and (iii) the Company Note.
25
(d) Conduct of Business. Engage in any business or activity
other than as contemplated by the Transaction Documents and activities
necessary or incidental thereto.
(e) Organizational Documentation. Amend or revoke its
organizational documentation or change its jurisdiction of
organization.
(f) Change of Name. Change its name, corporate structure or
jurisdiction of organization unless it has (i) given the Administrative
Agent at least 30 days' prior written notice thereof and (ii) executed,
delivered and filed such amendments to the UCC financing statements
filed in connection herewith as the Administrative Agent may request,
and take such other actions as are necessary or advisable to continue
the perfection of the Collateral Agent's interest in the assets of
Borrower.
(g) Limitation on Cash in Transit. Allow any amount of Cash
greater than the amount for which Approved Couriers are insured under
approved insurance policies to be in the possession of the Approved
Couriers, in the aggregate, at any one time.
(h) Other Agreements. Enter into any Approved Courier
Agreement, Approved Vault Bank Agreement or any other agreement with
respect to the Transaction Documents which has not been approved by the
Administrative Agent.
SECTION 7.04 Covenants of the Check-Xxxxxx and ACE. From the date
hereof until the Final Payout Date, each of the Check-Xxxxxx and ACE will,
unless the Administrative Agent shall otherwise consent in writing:
(a) Preservation of Existence. Preserve and maintain its
corporate existence, rights, franchises and privileges in the
jurisdiction of its organization, and qualify and remain qualified in
good standing as a foreign corporation in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises,
privileges and qualification would have a Material Adverse Effect.
(b) Compliance with Laws. Comply in all material respects with
all Applicable Laws (including licensing requirements).
(c) Audits. (i) At any time and from time to time during
regular business hours, permit the Administrative Agent, the Collateral
Agent, the Liquidity Agent and any of their respective agents or
representatives, (A) to examine and make copies of and abstracts from
all Check-Xxxxxx'x books, records and documents (including, without
limitation, computer tapes and disks) in the possession or under the
control of Check-Xxxxxx relating to the Assets and (B) to visit the
offices and properties of Check-Xxxxxx for the purpose of examining
such materials described in clause (i)(A) next above, and to discuss
matters relating to the Assets or Check-Xxxxxx'x performance hereunder
with any of the officers or employees of Check-Xxxxxx having knowledge
of such matters; provided, however, that (x) prior to the occurrence of
an Event of Default, such reviews shall take place no more frequently
than quarterly in the year in which the first Usage Period falls and
semi-annually thereafter and (y) after the occurrence of an Event of
Default, the frequency of such reviews shall be at the Administrative
Agent's sole
26
discretion, and (ii) without limiting the provisions of clause (i) next
above, from time to time on reasonable request of the Collateral Agent,
the Administrative Agent or the Liquidity Agent, permit certified
public accountants or other auditors acceptable to the Collateral
Agent, the Administrative Agent or the Liquidity Agent to conduct, at
Check-Xxxxxx'x expense, not more than twice in each fiscal year, unless
an Event of Default shall have occurred and be continuing in which case
the reviews will be at the expense of the Check-Xxxxxx and as frequent
as reasonably necessary, a review of Check-Xxxxxx'x books and records
with respect to the Assets; provided, however, that the maximum amount
payable by the Borrower and ACE for expenses associated with such
audits described in this Section 7.04(c) and of Section 7.01(c) shall
be $20,000 per annum prior to the occurrence of an Event of Default.
(d) UCC Financing Statements. File such UCC financing or
continuation statements, or amendments thereto or assignments thereof,
and such other instruments or notices, as may be necessary or
appropriate, in accordance with the terms of this Agreement to maintain
the first priority perfected security interest of the Collateral Agent
in the assets of Borrower.
(e) Notice. Deliver to the Administrative Agent and the
Liquidity Agent:
(i) immediately upon becoming aware of the existence
of any Event of Default, Check-Xxxxxx Event of Default or
Unmatured Event of Default, written notice describing its
nature and period of existence and what action Check-Xxxxxx is
taking or proposing to take with respect thereto;
(ii) as soon as possible or in any event within two
(2) Business Days of Check-Xxxxxx'x knowledge thereof, notice
of any litigation, investigation or proceeding which may exist
at any time which could reasonably be expected to have a
Material Adverse Effect and any material adverse development
in previously disclosed litigation;
(iii) promptly, from time to time, such other
information, documents, records or reports respecting the
Assets or condition or operations, financial or otherwise, of
Check-Xxxxxx as the Administrative Agent or the Liquidity
Agent may from time to time reasonably request in order to
protect the interests of the Secured Parties under or as
contemplated by this Agreement;
(iv) promptly upon the execution thereof, copies of
all agreements relating to the SSMs entered into by the
Check-Xxxxxx in accordance with this Agreement;
(v) immediately upon becoming aware of any
cancellation or termination of any Approved Courier Agreement
or Approved Vault Bank Agreement, written notice of such
cancellation or termination; and
(vi) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto) and
annual, quarterly or monthly reports that ACE files with the
Securities and Exchange Commission.
27
(f) Quarterly and Annual Financial Statements. Furnish to the
Administrative Agent:
(i) As soon as available and in any event within 45
days (or 60 days in the case of the last quarter of each
fiscal year) after the end of each quarter of each fiscal year
of ACE, copies of the consolidated financial statements of ACE
prepared in conformity with GAAP (except as to the absence of
footnotes), duly certified by the chief financial officer of
ACE; and
(ii) As soon as available and in any event within 90
days after the end of each fiscal year of ACE, copies of the
audited consolidated and consolidating financial statements of
ACE (which shall include the Borrower) prepared in conformity
with GAAP, duly certified by independent certified public
accountants of recognized standing selected by ACE;
(g) Other Agreements. Only enter into Approved Courier
Agreements, Approved Vault Bank Agreements and other agreements with
respect to the SSMs which have been approved by the Administrative
Agent.
(h) SSM Cash Maximums. Not to permit Cash in excess of
$300,000 to be placed in, or to remain for a period in excess of one
Business Day in, any SSM.
(i) Restricted Access. Not to permit any Person other than an
Approved Courier or a maintenance provider which has signed an
acknowledgment in a form acceptable to the Administrative Agent to have
access to Cash or Checks in any SSM.
(j) Notice of Financing Defaults. Deliver a notice to the
Administrative Agent and the Liquidity Agent within one Business Day of
(A) becoming aware of any "default", "event of default" or other
similar event (including any event which with the lapse of time or
giving of notice or both would become such a "default", "event of
default" or other similar event) (an "SSM Financing Default") under any
agreement pursuant to which ACE finances or leases an SSM or (B)
receipt of notice from any SSM Lender of a notice of an SSM Financing
Default under any agreement pursuant to which ACE finances or leases an
SSM, in each case, without giving effect to any cure periods set forth
in such agreements. Such notice shall include a description of the
applicable event, a copy of the notice, if any, received from the
applicable SSM Lender, and a description of the steps being taken or to
be taken in response to such event.
(k) Keeping of Records and Books of Account. Maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing Assets in the
event of the destruction of the originals thereof), and keep and
maintain, all documents, books, records and other information
reasonably necessary or advisable for the collection of all Assets
(including, without limitation, records adequate to permit the daily
identification of the outstanding Assets).
(l) Disposition of Cash. Under no circumstances direct any
Cash to be deposited into any account other than a Vault Collection
Account or a Trust Account.
28
(m) SSM Cash Recipients. Ensure that the SSMs will be
configured and operated at all times such that an SSM shall dispense
Cash only to a Tax Filer who deposits a Check in exchange therefor, who
enters a valid personal identification number provided to such Tax
Filer by an Approved Tax Provider and a valid social security number
and who accurately identifies and selects the Tax Xxxxx'x Mother's
maiden name or such other security procedure as may be adopted by the
Approved Tax Provider, prompt notice of which shall be provided to the
Administrative Agent.
(n) Check Endorsement. Ensure that the check cashing program
related to the SSMs at all times is established and operating such that
each Check deposited into an SSM will be automatically endorsed: "Void
ACE Cash Express Void".
(o) Use of Approved Couriers. In addition, no armored car
carrier shall be utilized by the Check-Xxxxxx for armored car courier
cash transportation services unless such Person is an Approved Courier
who:
(i) is bonded or insured consistent with industry
practice in a manner acceptable to the Administrative Agent;
(ii) has executed and delivered to the Collateral
Agent an Approved Courier Agreement in which it shall have
agreed, inter alia, (1) to act as bailee on behalf of the
Collateral Agent while any Cash and/or Checks are in their
possession and (2) to indemnify the Borrower against any loss
while any Cash and/or Checks are in their possession.
(p) Compliance with Agreements. Comply with the terms of each
of the Approved Courier Agreements, Approved Vault Bank Agreements, all
agreements with each SSM Lender, all agreements with Approved Tax
Providers, the Electronic Presentment Agreement and all agreements with
Approved Banks entered into in connection with the transactions
contemplated by the Transaction Documents.
(q) Accurate Information. No Servicing Report or other
information, exhibit, financial statement, document, book, record or
report furnished or to be furnished by or on behalf of it or its
Affiliates to the Administrative Agent or the Liquidity Agent in
connection with any of the Transaction Documents was or will be
inaccurate in any material respect as of the date it was or will be
dated or (except as otherwise disclosed to the Administrative Agent and
the Liquidity Agent at such time) as of the date it was so furnished,
or contained or will contain any material misstatement of fact or
omitted or will omit to state a material fact or any fact necessary to
make the statements contained therein not materially misleading.
(r) Notice of Licensing Inquiry. Provide notice to the
Administrative Agent immediately upon becoming aware of any Licensing
Inquiry.
SECTION 7.05 Separate Existence. Each of the Borrower and ACE hereby
acknowledges that the Secured Parties are entering into the transactions
contemplated by the Transaction Documents in reliance upon Borrower's identity
as a legal entity separate from ACE and its Affiliates. Therefore, from and
after the date hereof, Borrower and ACE shall take all
29
steps specifically required by this Agreement or reasonably required by the
Administrative Agent to continue Borrower's identity as a separate legal entity
and to make it apparent to third Persons that Borrower is an entity with assets
and liabilities distinct from those of any other Person and is not a division of
any other Person. Without limiting the generality of the foregoing and in
addition to and consistent with the other covenants set forth herein, each of
Borrower and ACE shall take such actions as shall be required in order that:
(a) Borrower will be a limited liability company whose primary
activities are restricted in its organizational documentation and whose
purposes include borrowing funds from Lender and using such funds to
provide Cash to SSMs to be used solely to provide funds to enable ACE
to cash Checks, and conducting such other activities as it deems
necessary or appropriate to carry out its primary activities;
(b) Any employee, consultant or agent of Borrower will be
compensated from Borrower's funds for services provided to Borrower.
Borrower will not engage any agents other than its attorneys, auditors
and other professionals, and a Check-Xxxxxx and any other agent
contemplated by the Transaction Documents, which Check-Xxxxxx will be
fully compensated for its services by payment of the Servicing Fee and
Check-Cashing Payment;
(c) Subject to the following sentence, Borrower will not incur
any material indirect or overhead expenses for items shared with ACE
(or any other Affiliate thereof) which are not reflected in the
Servicing Fee and Check-Cashing Payment. To the extent, if any, that
ACE (or any Affiliate thereof) shares with Borrower items of expense
not reflected in the Servicing Fee and the Check-Cashing Payment, such
as legal, auditing and other professional services, such expenses will
be allocated to the extent practical on the basis of actual use or the
value of services rendered, and otherwise on a basis reasonably related
to the actual use or the value of services rendered;
(d) Borrower's operating expenses will not be paid by ACE or
any other Affiliate thereof;
(e) Borrower will have its own stationery separate from that
of any other Person;
(f) Borrower's books and records will be maintained separately
from those of any other Person;
(g) All financial statements of any Person that are
consolidated to include Borrower will contain detailed notes clearly
stating that (A) all of Borrower's assets are owned by Borrower, and
(B) Borrower is a separate entity with creditors who have received
security interests in Borrower's assets;
(h) Borrower's assets will be maintained in a manner that
facilitates their identification and segregation from those of any
other Person;
(i) Borrower will strictly observe limited liability company
formalities in its dealings with ACE and any Affiliate thereof, and
funds or other assets of Borrower will not be commingled with those of
any other Person. Borrower shall not maintain joint
30
bank accounts or other depository accounts to which any other Person
has independent access (other than in accordance with the Transaction
Documents). Borrower is not named, and has not entered into any
agreement to be named, directly or indirectly, as a direct or
contingent beneficiary or loss payee on any insurance policy with
respect to any loss relating to the property of any other Person; and
(j) Borrower will not hold itself out to be responsible for
the debts of any other Person or the decisions or actions respecting
the daily business and affairs of any other Person. Borrower will
immediately correct any known misrepresentation with respect to the
foregoing, and it will not operate or purport to operate as an
integrated single economic unit with respect to or in its dealing with
any other Person.
ARTICLE VIII
ADMINISTRATION AND COLLECTION
SECTION 8.01 Check-Xxxxxx to Act. Borrower hereby appoints ACE as
Check-Xxxxxx to perform the duties with respect to the providing of Borrower's
Cash to SSMs and the administration and allocation of Checks, Cash and
Collections in and among certain Transaction Accounts as contemplated by this
Agreement. Such services shall include:
(a) enforcing the Borrower's rights under Approved Vault Bank
Agreements, Approved Courier Agreements and any other agreements
necessary to provide cash for the SSMs;
(b) making claims under any insurance policies covering the
Cash;
(c) preparing reports with respect to the Vault Collection
Accounts, Reserve Account and Trust Collection Account activity and
Cash maintenance;
(d) maintaining a list of (A) the location of each SSM
receiving Cash and (B) each Approved Courier (with a contact person and
telephone number);
(e) maintaining records with respect to the amount of Cash
located in each SSM at any time;
(f) (i) instructing the Collateral Agent on each Business Day
during the Usage Period, with a copy to the Borrower and the
Administrative Agent as to (A) the amounts of Cash to be transferred
from the Trust Collection Account to the Vault Collection Accounts for
distribution to the applicable Approved Couriers, and (B) the amounts
of Cash to be transferred from the Vault Collection Accounts to the
Trust Collection Account and (ii) causing Cash to be transferred from
the Vault Collection Accounts to the applicable Approved Couriers for
delivery to the SSMs on each Business Day;
(g) subject to Section 9.02(d), instructing the Approved
Couriers on each Business Day during the Usage Period in writing (with
a copy to the Borrower and the Collateral Agent and the Administrative
Agent) as necessary to (i) pick up Cash at an Approved Vault Bank and
deliver such Cash to an SSM, (ii) withdraw Cash or Checks
31
from an SSM and deliver such Cash and Checks to an Approved Vault Bank,
or (iii) coordinate delivery of voided Checks to Xxxxxx, Fargo & Co.;
(h) placing SSMs in the offices of Approved Tax Providers;
(i) programming the Check-Xxxxxx'x point-of-sale check-cashing
system into each SSM placed in the offices of Approved Tax Providers;
(j) if an Electronic Presentment Agreement is not in effect,
causing the Approved Vault Bank to present to the applicable Approved
Bank for payment all Checks inserted into the SSMs by Tax Filers in
accordance with the Check-Xxxxxx'x policies and procedures;
(k) causing all information as may be required by any state or
federal regulatory agency related to Check-Xxxxxx'x check cashing
activities hereunder to be provided on a timely basis;
(l) performing its duties and responsibilities with respect to
the Electronic Presentment Agreement, including, but not limited to:
(i) identifying Checks valid for cashing in the SSMs by reviewing the
Check Authorization File (as defined in the Electronic Presentment
Agreement); (ii) providing an electronic record of each disbursement of
Cash and the voiding of the corresponding Check by each SSM by
generating the Check Cleared File (as defined in the Electronic
Presentment Agreement) for delivery to Household Tax Masters; (iii)
re-presenting electronically for payment any Checks which are not
honored upon the first electronic presentment for payment; (iv)
providing to the Administrative Agent on a weekly basis a report
listing all Exceptions (as defined in the Electronic Presentment
Agreement) generated by Household Tax Masters during the weekly period
ending on the Business Day immediately preceding the date of such
report; and (v) coordinating physical presentment for payment by the
Collateral Agent to an Approved Bank of any Check which has not been
honored after twice being presented for payment electronically; and
(m) providing the Collateral Agent with all information,
notices, reports, other documents and agreements and directions as may
be necessary to enable the Collateral Agent to perform any procedures
mandated by, and otherwise comply with the provisions of, all account
agreements related to the Vault Collection Accounts.
The Check-Xxxxxx shall perform, and shall have full power and authority to
perform, subject to the requirements and limitations set forth in this
Agreement, any and all things in connection with such servicing that are
consistent with all Applicable Laws and consistent with customary practices of
Check-Cashers performing similar functions, but in performing its duties
hereunder, the Check-Xxxxxx will act on behalf of and for the benefit of
Borrower and the Secured Parties. The Check-Xxxxxx will comply with the terms of
each of the Approved Courier Agreements, Approved Vault Bank Agreements, all
agreements with each SSM Lender, all agreements with each Approved Tax Provider,
and all agreements with Approved Banks, entered into in connection with the
transactions contemplated by the Transaction Documents. The Check-Xxxxxx
represents, warrants, covenants and agrees that (i) Schedule II shall at all
times reflect a
32
complete and accurate listing of all SSMs and Schedule III shall at all times
reflect a complete and accurate listing of all Excluded SSMs, and (ii) each bank
at which Vault Collection Account is located is an Approved Vault Bank. Prior to
the occurrence of an Event of Default or the Termination Date and subject to
Section 3.01(g), the Collateral Agent shall transfer cash as instructed by the
Check Xxxxxx in accordance with Section 8.01(f).
SECTION 8.02 Insurance. The Check-Xxxxxx shall maintain, or cause to be
maintained for Borrower's account, (a) with respect to the Cash, insurance
covering losses resulting from SSM malfunction, theft, fraud, fire, and any
other items as may be reasonably requested by the Administrative Agent, (b)
errors and omissions insurance and (c) fidelity insurance, in each case in the
amounts specified in Schedule III. The Check-Xxxxxx shall (x) cause each of the
insurance policies identified above to be issued by reputable insurance
companies with claims paying ratings of at least "A" by Standard & Poor's and
"A2" by Moody's, (y) cause each such insurance policy covering losses with
respect to the Cash resulting from theft to name the Collateral Agent as loss
payee and to provide that it may not be cancelled, amended or terminated without
at least 30 days prior written notice to the Collateral Agent and (z) provide
written notice to the Borrower and the Collateral Agent within one (1) Business
Day of any cancellation, amendment or termination of any errors and omissions
insurance or fidelity insurance policy described in clauses (b) or (c) above.
The Check-Xxxxxx shall promptly file and shall diligently pursue any claims with
respect to the Assets with the applicable insurer, and shall deposit all
proceeds received in connection therewith in the Trust Collection Account within
one (1) Business Day of receipt. Upon any failure of the Check-Xxxxxx to take
any such actions, the Collateral Agent shall have the right to take any such
actions in its place and stead and shall, at the direction of the Administrative
Agent, take any such actions in its place and stead, and the Check-Xxxxxx shall
cooperate with the Collateral Agent in taking any such action. Each of the
Borrower and the Check-Xxxxxx covenants and agrees not to amend or terminate any
such insurance policy without the prior written consent of the Administrative
Agent.
SECTION 8.03 Reporting. (a) The Check-Xxxxxx shall deliver to Borrower,
the Administrative Agent, the Liquidity Agent and the Collateral Agent the
following:
(i) On each Business Day during the Usage Period, (A)
a report substantially in the form of Exhibit 8.03(i) (the
"Borrowing Base Report") describing the Cash withdrawal
transactions that occurred at SSMs and summary data, including
(a) the total number of transactions involving the withdrawal
of Cash from the SSMs, (b) the amount of Cash contained in the
SSMs, (c) the total Cash dispensed from the SSMs, (d) the
aggregate dollar amount of Checks deposited in each SSM, (e)
the amount on deposit in the Trust Collection Account, each
Vault Collection Account, and the Reserve Account, (B) an
electronic file detailing each item of data required to
perform the calculations necessary to determine whether a
Program Deficiency exists, and (C) records of all Assets and
other data necessary to service the Assets, in a format
acceptable to the Borrower, the Collateral Agent and the
Administrative Agent.
(ii) On the fifth day of each calendar month during
the Usage Period, or if any such day is not a Business Day,
the next Business Day (the "Reporting Date"), a report
substantially in the form of Exhibit 8.03(ii) (a "Servicing
33
Report"), including a confirmation of all Borrowing Notices
for the preceding calendar month; and
(iii) Such other information as may be reasonably
requested from time to time by Borrower, the Administrative
Agent or the Liquidity Agent.
SECTION 8.04 Books and Records. The Check-Xxxxxx shall keep and
maintain, or cause to be kept and maintained, accurate and complete books and
records regarding its duties hereunder.
SECTION 8.05 Check-Xxxxxx Representations. The Check-Xxxxxx covenants
and agrees that each delivery of a Borrowing Base Report or Servicing Report
shall be deemed to be a representation and warranty by the Check-Xxxxxx that (i)
all information in such Borrowing Base Report or Servicing Report is true and
accurate in all material respects (including, without limitation, that all
Assets characterized as Eligible Assets therein are, in fact, Eligible Assets),
(ii) the Check-Xxxxxx is in compliance with all of its agreements and covenants
set forth in the Transaction Documents, (iii) no Check-Xxxxxx Event of Default
or Event of Default has occurred and is continuing, and (iv) the representations
and warranties of the Check-Xxxxxx contained in the Transaction Documents are
true and correct in all material respects as if made on the date of the
execution of such Borrowing Base Report or Servicing Report.
SECTION 8.06 Costs of Servicing; Check-Xxxxxx'x Fee. (a) Costs of
Servicing. All costs of servicing in the manner required by this Article VIII
shall be borne by the Check-Xxxxxx. During the Usage Period, the Check-Xxxxxx
shall be entitled to receive the servicing fee (the "Servicing Fee") in the
amount described in Section 8.06(b).
(b) Servicing Fee; Check-Xxxxxx'x Fee. The amount of the
Servicing Fee which the Check-Xxxxxx shall be entitled to receive on
each Settlement Date during the Usage Period and on the Usage Period
Maturity Date shall be determined by multiplying (i) the average
Eligible Pool Balance during the prior Monthly Period multiplied by
(ii) 1.00% multiplied by (iii) 1/12 (pro rated in the case of the Usage
Period Maturity Date). In addition, the Check-Xxxxxx shall be entitled
to receive the Check-Cashing Payment in accordance Section 3.03(e)(ix).
SECTION 8.07 Successor Check-Xxxxxx; Liquidation. Upon the occurrence
of any Check-Xxxxxx Event of Default, the Termination Date, or any Event of
Default, the Collateral Agent shall (i) if so directed by the Administrative
Agent, designate a new Check-Xxxxxx for purposes of liquidating the facility and
give notice to the Check-Xxxxxx that a new Check-Xxxxxx has been designated for
such purposes or (ii) if so directed by the Administrative Agent, give notice to
the Check-Xxxxxx that the Collateral Agent will assume all of the rights of the
Check-Xxxxxx hereunder for purposes of liquidating the facility in accordance
with Section 9.02(c) and (d). The Collateral Agent shall have no liability with
respect to any obligation which was required to be performed by the Check Xxxxxx
or any claim of a third party based on any alleged action or inaction by the
Check-Xxxxxx. Upon receipt by the Check-Xxxxxx of any notice in accordance with
clause (i) or (ii) above, it shall terminate its activities as Check-Xxxxxx
hereunder in a manner that the Collateral Agent believes will facilitate the
transition of the performance of such activities to a new Check-Xxxxxx or the
Collateral Agent, as the case may
34
be. All costs and expenses of the Collateral Agent or any successor Check-Xxxxxx
in liquidating the facility shall be paid by the prior Check-Xxxxxx. Any new
Check-Xxxxxx must agree in writing to perform the duties and obligations of the
Check-Xxxxxx pursuant to the terms hereof. The Collateral Agent shall provide
each Rating Agency with notice of any change in the Check-Xxxxxx.
The Check-Xxxxxx hereby agrees to cooperate with the Collateral Agent
and any successor to the Check-Xxxxxx appointed in accordance herewith in
effecting the termination and transfer of the responsibilities and rights of the
Check-Xxxxxx hereunder to the Collateral Agent or any successor to the
Check-Xxxxxx, including, without limitation, the transfer to the Collateral
Agent or to the successor to the Check-Xxxxxx, as applicable, for administration
by it of all Cash and Checks which shall at the time be held by the Check-Xxxxxx
or thereafter received with respect to the Assets. In addition, upon the
appointment of any successor Check-Xxxxxx or the assumption by the Collateral
Agent of the Check-Xxxxxx'x rights and responsibilities hereunder, the
Check-Xxxxxx shall obtain and/or assign to the Collateral Agent or such
successor any license or approval required for the use of any program used by
the Check-Xxxxxx in the servicing of the Assets. The Check-Xxxxxx hereby
designates the Collateral Agent or any successor to the Check-Xxxxxx as its
agent and attorney-in-fact to execute transfers of financing statements and any
other filings or instruments which may be necessary or advisable to effect such
transfer of the Check-Xxxxxx'x responsibilities and rights hereunder.
SECTION 8.08 Bailee for Collateral Agent. The Check-Xxxxxx hereby
acknowledges that Borrower has granted to the Collateral Agent, for the benefit
of the Secured Parties, a security interest in all of the assets of Borrower. If
the Check-Xxxxxx has, or is deemed to have, possession of any Assets (whether in
the form of cash or otherwise), the Check-Xxxxxx agrees that it shall hold all
such Assets as custodian and bailee on behalf of the Collateral Agent for the
purposes of perfecting the security interest of the Secured Parties in such Cash
and other Assets.
ARTICLE IX
EVENTS OF DEFAULT; TERMINATION EVENTS
SECTION 9.01 Events of Default. The following events shall each be an
"Event of Default" hereunder:
(a) Borrower shall fail to make any payment or deposit to be
made by it hereunder when due or shall fail to pay any payment of
principal or interest under the Note when due; or
(b) Any representation or warranty made or deemed to be made
by Borrower (or any of its officers) under or in connection with this
Agreement or other information or report delivered pursuant hereto
shall prove to have been false or incorrect in any material respect
when made and such condition shall continue unremedied for a period of
thirty (30) days after (i) written notice thereof by the Administrative
Agent or (ii) Borrower has actual knowledge that such representation or
warranty is false or incorrect; or
35
(c) Borrower shall fail to perform or observe in any material
respect any other term, covenant or agreement contained in this
Agreement or any of the other Transaction Documents on its part to be
performed or observed and any such failure shall remain unremedied for
thirty (30) days after (i) written notice thereof shall have been given
by the Administrative Agent to Borrower or (ii) Borrower has actual
knowledge of such failure to perform or observe any covenant hereunder;
or
(d) A default shall have occurred and be continuing under any
instrument or agreement evidencing, securing or providing for the
issuance of indebtedness for borrowed money of, or guaranteed by,
Borrower or ACE (provided that, in the case of ACE, the principal of
such indebtedness exceeds $250,000), which default is a default in the
payment of any amount due thereunder (after giving effect to any
periods of grace or right to cure) or which default if unremedied,
uncured, or unwaived (with or without the passage of time or the giving
of notice or both) would permit acceleration of the maturity of such
indebtedness and such default shall have continued unremedied, uncured
or unwaived for a period long enough to permit such acceleration; or
(e) An Event of Bankruptcy shall have occurred and remain
continuing with respect to the Borrower or ACE ; or
(f) Borrower or the Check-Xxxxxx shall fail to maintain
insurance in accordance with the terms of the Insurance Schedule and
any such failure shall remain unremedied for five (5) Business Days or
Borrower or Check-Xxxxxx shall amend or terminate any required
theft/loss insurance with respect to the Cash, Checks or the SSMs
without the prior written consent of the Administrative Agent; or
(g) (i) Any litigation (including, without limitation,
derivative actions), arbitration proceedings or governmental
proceedings not disclosed in writing by Borrower to the Administrative
Agent prior to the date of execution and delivery of this Agreement is
pending against Borrower, or for an amount greater than $250,000
against ACE or (ii) any material development not so disclosed has
occurred in any litigation (including, without limitation, derivative
actions), arbitration proceedings or governmental proceedings so
disclosed, which, in the case of clause (i) or (ii), in the reasonable
opinion of the Administrative Agent, has a reasonable likelihood of
having a Material Adverse Effect; or
(h) There shall exist any event or occurrence that would
reasonably be expected to cause a Material Adverse Effect; or
(i) The Borrower is subject to a Change in Control (which has
not otherwise been approved in writing by the Administrative Agent); or
(j) The IRS shall file notice of a lien pursuant to Section
6323 of the Internal Revenue Code with regard to any of the assets of
Borrower and such lien shall not have been released within five (5)
Business Days, or the Pension Benefit Guaranty Corporation shall, or
shall indicate its intention to, file notice of a lien pursuant to
Section 4068 of the ERISA with regard to any of the assets of Borrower
or any of its Affiliates; or
36
(k) A Check-Xxxxxx Event of Default occurs and is continuing;
or
(l) This Agreement shall for any reason (other than pursuant
to the terms hereof) cease to create, or there shall for any reason
cease to be, a valid and enforceable perfected first priority security
interest in all of the assets of the Borrower (including, without
limitation, all Assets) free and clear of any other Lien; or
(m) Borrower shall for any reason cease to have a valid and
enforceable ownership interest in the Assets; or
(n) A Program Deficiency occurs and continues unremedied for
two Business Days; or
(o) The Defaulted Amount exceeds $250,000; or
(p) The Borrower shall fail to maintain, at any time during
the Usage Period, a tangible net worth (calculated in accordance with
GAAP) of at least $1,000,000; or
(q) The Denied Checks Amount exceeds $50,000; or
(r) 95% of Collections during any Monthly Period do not flow
directly through a Vault Collection Account or the Trust Collection
Account or 100% of Collections during any Monthly Period do not flow
through a Vault Collection Account or the Trust Collection Account and
such failure is not cured within one Business Day of discovery of such
failure by the Borrower or the Check-Xxxxxx.
SECTION 9.02 Remedies.
(a) Optional Acceleration. Upon the occurrence of an Event of
Default (other than an Event of Default described in Section 9.01(e)),
the Administrative Agent may declare that the Termination Date has
occurred and the unpaid principal amount of the Note to be due and
payable immediately, by a notice in writing to Borrower, and upon any
such declaration, the Termination Date shall occur and such principal
amount shall be immediately due and payable, together with all accrued
and unpaid interest thereon, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by Borrower.
(b) Automatic Acceleration. Upon the occurrence of an Event of
Default described in Section 9.01(e), the Termination Date shall occur
automatically and the unpaid principal amount of the Note shall
automatically become due and payable, together with all accrued and
unpaid interest thereon, without presentment, demand, protest or notice
of any kind, all of which are hereby waived by Borrower.
(c) Additional Remedies. Upon any acceleration of the Note
pursuant to this Section 9.02, no Borrowings thereafter will be made,
and the Collateral Agent and other Secured Parties shall have, in
addition to all other rights and remedies under this Agreement or
otherwise, all other rights and remedies provided under the UCC of each
applicable jurisdiction and other Applicable Laws to a secured party,
which rights shall
37
be cumulative. Upon the acceleration of the Note, the Collateral Agent
shall (unless otherwise instructed by the Majority Liquidity Providers)
take all lawful action at ACE's expense (for reasonable costs and
expenses) to exercise any and all rights, remedies, powers and
privileges lawfully available to the Collateral Agent including,
without limitation, the transmission of notices of default and the
institution of legal or administrative actions or proceedings to compel
or secure performance by the Borrower or the Check-Xxxxxx and to
exercise any other remedies available to a secured party. If an Event
of Default shall have occurred and be continuing, the Collateral Agent
shall (at the direction of the Administrative Agent) direct Borrower to
exercise all rights, remedies, powers, privileges and claims of
Borrower against the Check-Xxxxxx or any other party under or in
connection with the Transaction Documents, including the right or power
to take any action to compel performance or observance by the
Check-Xxxxxx or such other party of its obligations to Borrower, and
the right to give any consent, request, notice, direction, approval,
extension or waiver in respect of any Transaction Document. If Borrower
shall have failed, within five (5) Business Days of receiving the
directions of the Collateral Agent, to satisfactorily undertake such
directed actions, the Collateral Agent may take such previously
directed actions on behalf of Borrower and the Secured Parties.
(d) Collateral Agent to Instruct. Upon the occurrence of an
Event of Default, Termination Event or Termination Date, the Collateral
Agent shall be the sole party authorized to instruct the Approved
Couriers and each Approved Vault Bank as to any action to be taken with
respect to Cash, Checks and Collections. Without limiting any other
provision of this Section 9.02, upon the acceleration of the Notes
pursuant to this Section 9.02 or upon the occurrence of a Termination
Event, the Collateral Agent shall (unless otherwise instructed by the
Majority Liquidity Providers) give notice to the Check-Xxxxxx, each
Approved Vault Bank and each Approved Courier to cease distributing
Cash and to arrange for the return within two (2) Business Days of all
of the Cash and Checks in the possession of such Approved Vault Bank or
Approved Courier or any SSM serviced by such Approved Courier (all such
Cash to be deposited in the Trust Collection Account).
ARTICLE X
THE ADMINISTRATIVE AGENT; COLLATERAL AGENT
SECTION 10.01 Authorization and Action. Pursuant to agreements entered
into with the Administrative Agent, Lender has appointed and authorized the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto.
SECTION 10.02 Administrative Agent's and Collateral Agent's Reliance,
Etc. The Administrative Agent, the Collateral Agent and their directors,
officers, agents or employees shall not be liable for any action taken or
omitted to be taken by it or them under or in connection with the Transaction
Documents (including, without limitation, the servicing, administering or
collecting of Assets as Check-Xxxxxx pursuant to Section 8.01), except for its
or their own gross
38
negligence or willful misconduct. Without limiting the generality of the
foregoing, each of the Administrative Agent and the Collateral Agent: (a) may
consult with legal counsel (including counsel for Borrower), independent
certified public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (b) makes no
warranty or representation to any Secured Party or any other holder of any
interest in Assets and shall not be responsible to any Secured Party or any such
other holder for any statements, warranties or representations made in or in
connection with any Transaction Document; (c) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of any Transaction Document on the part of Borrower or
the Check-Xxxxxx or to inspect the property (including the books and records) of
Borrower or the Check-Xxxxxx; (d) shall not be responsible to any Secured Party
or any other holder of any interest in the Assets for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Transaction Document; and (e) shall incur no liability under or in respect of
this Agreement by acting upon any notice (including notice by telephone where
permitted herein), consent, certificate or other instrument or writing (which
may be by facsimile or telex) in good faith believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 10.03 The Liquidity Agent, the Collateral Agent, the
Administrative Agent and Affiliates. The Liquidity Agent, the Collateral Agent,
the Administrative Agent and any of their respective Affiliates may generally
engage in any kind of business with Borrower or the Check-Xxxxxx, any of their
respective Affiliates and any Person who may do business with or own securities
of Borrower or the Check-Xxxxxx or any of their respective Affiliates, all as if
they were not the Administrative Agent, Collateral Agent and the Liquidity
Agent, respectively, and without any duty to account therefor to any Secured
Party or any other holder of an interest in the Assets.
SECTION 10.04 Appointment and Powers of Collateral Agent. The Secured
Parties hereby appoint the Collateral Agent as their agent hereunder and hereby
authorize the Collateral Agent to take such action on their behalf and to
exercise such rights, remedies, powers and privileges hereunder as are
specifically authorized to be exercised by the Collateral Agent by the terms
hereof, together with such rights, remedies, powers and privileges as are
reasonably incidental thereto. The parties hereto agree that the Collateral
Agent shall not be required to exercise any discretion or take any action or
refrain from taking any action in its capacity as Collateral Agent, but shall
only be required to act or refrain from acting in such capacity (and shall be
fully protected in so acting or refraining from acting) upon the instruction of
the Majority Liquidity Providers. The Collateral Agent shall be entitled to
retain experts and to act in reliance upon the advice of such experts concerning
all matters pertaining to the agencies hereby created and its duties hereunder,
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such experts selected by it. The
relationship between the Collateral Agent and each of the Secured Parties is
that of Collateral Agent and principal only, and nothing herein shall be deemed
to constitute the Collateral Agent a trustee for any of the Secured Parties or
impose on the Collateral Agent any obligations other than those for which
express provision is made herein.
If the Collateral Agent receives unclear or conflicting instructions,
it shall be entitled to refrain from taking action until clear or
non-conflicting instructions are received, but shall inform
39
the instructing party or parties promptly of its decision to refrain from taking
such action. Except as required by the specific terms of this Agreement, the
Collateral Agent shall have no duty to exercise any right, power, remedy or
privilege granted to it hereby, or to take any affirmative action hereunder,
unless directed to do so by the Majority Liquidity Providers (and shall be fully
protected in acting or refraining from acting pursuant to such directions which
shall be binding on the Secured Parties), and shall not, without the prior
approval of the Majority Liquidity Providers, waive any default on the part of
Borrower or the Check-Xxxxxx. Notwithstanding anything herein to the contrary,
the Collateral Agent shall not be required to take any action (i) which the
Collateral Agent has determined will expose the Collateral Agent to personal or
financial liability, unless indemnified to its satisfaction, or (ii) which is
contrary to this Agreement, the other Transaction Documents, or Applicable Law.
The Collateral Agent shall be entitled to rely on any communication,
instrument, paper or other document reasonably believed by it to be genuine and
correct and to have been given, signed or sent by the proper Person or Persons.
The Collateral Agent shall be entitled to assume that no Event of Default shall
have occurred and be continuing, unless a Responsible Officer of the Collateral
Agent has actual knowledge thereof or the Collateral Agent has received written
notice thereof from the Secured Parties.
Each of the Borrower and ACE hereby authorizes the Collateral Agent to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the collateral in which an interest is granted,
or is purported to be granted, hereby, without the signature of the Borrower or
ACE, as the case may be, where permitted by law. The Collateral Agent shall, at
the direction of the Administrative Agent, file any such financing statements or
amendments thereto as the Administrative Agent may provide to the Collateral
Agent; provided that absent any such instruction, the Collateral Agent shall
have no obligation to file any such financing statements or amendments. In
addition, Collateral Agent shall, at the direction of Borrower, file any
continuation statements provided to it by Borrower, provided that absent any
such instruction and the provision of such continuation statements, the
Collateral Agent shall prepare and file all continuation statements necessary to
maintain a first priority perfected security interest in all of the assets of
Borrower which may be perfected by filing a financing statement under the UCC.
SECTION 10.05 Collateral Agent and Employees of the Collateral Agent.
(a) No provision of this Agreement shall require the
Collateral Agent to expend or risk its own funds or otherwise incur any
financial or other liability in the performance of any duties hereunder
or in the exercise of any rights and powers hereunder.
(b) The Collateral Agent shall have the right at any time to
seek instructions from any court of competent jurisdiction. The
Collateral Agent may rely on the advice of counsel and shall be held
harmless for actions taken in reliance thereon.
(c) The Collateral Agent makes no representation as to, and
shall have no responsibility for, the correctness of any statement
contained in, or the validity or sufficiency of, this Agreement or any
documents or instruments referred to in this Agreement or the
sufficiency or effectiveness of any collateral assigned by this
40
Agreement or as to or for the validity or collectibility of any
obligation contemplated by this Agreement. The Collateral Agent shall
not be accountable for the use or application by any person of
disbursements properly made by the Collateral Agent in conformity with
the provisions of this Agreement.
(d) The Collateral Agent may exercise any of its duties
hereunder by or through Collateral Agents or employees. The possession
of the Collateral by such Collateral Agents or employees shall be
deemed to be the possession of the Collateral Agent.
(e) Each Liquidity Provider hereby agrees to indemnify and
hold harmless, in accordance with its pro rata percentage of the sum of
the aggregate commitments under the Liquidity Agreement, the Collateral
Agent (to the extent not indemnified or reimbursed by the Check Xxxxxx
or the Borrower) from and against any and all out-of-pocket costs and
expenses (including reasonable fees and expenses of counsel and other
experts) incurred or suffered by the Collateral Agent in its capacity
as Collateral Agent hereunder (or as the account holder for any of the
Vault Collection Accounts) as a result of any action taken or omitted
to be taken by the Collateral Agent in such capacity or otherwise
incurred or suffered by the Collateral Agent in such capacity to the
extent not reimbursed by the Check Xxxxxx or the Borrower or by
application of the Collateral; provided that no Liquidity Provider
shall be liable for any portion of any such costs or expenses resulting
from or attributable to gross negligence or willful misconduct on the
part of the Collateral Agent. The obligations of each Liquidity
Provider under this paragraph shall survive the termination of the
Liquidity Agreement.
(f) The provisions of this Section shall survive the
termination of this Agreement and the resignation of the Collateral
Agent hereunder.
SECTION 10.06 Successor Collateral Agent. The Collateral Agent acting
hereunder at any time may resign by an instrument in writing addressed and
delivered, 60 days prior to the effectiveness of such resignation, to each of
the Liquidity Providers, the Administrative Agent, the Liquidity Agent, the
Lender, the Borrower and the Check-Xxxxxx, and may be removed at any time with
cause by an instrument in writing duly executed by or on behalf of the Majority
Liquidity Providers. Subject to the provisions hereof, the Majority Liquidity
Providers shall also have the right to appoint a successor to the Collateral
Agent upon any such resignation or removal, by an instrument of substitution
complying with the requirements of Applicable Law, or, in the absence of any
such requirements, without any formality other than appointment and designation
in writing. Upon the making and acceptance of such appointment, the execution
and delivery by such successor Collateral Agent of a ratifying instrument
pursuant to which such successor Collateral Agent agrees to assume the duties
and obligations imposed on the Collateral Agent by the terms of this Agreement,
and the delivery to such successor Collateral Agent of the collateral, and
documents and instruments then held by the retiring Collateral Agent, such
successor Collateral Agent shall thereupon succeed to and become vested with all
the estate, rights, powers, remedies, privileges, immunities, indemnities,
duties and obligations hereby granted to or conferred or imposed upon the
retiring Collateral Agent, and one such appointment and designation shall not
exhaust the right to appoint and designate further successor Collateral Agents
hereunder. No removal or resignation of the Collateral Agent shall be effective
unless and until a successor Collateral Agent has been duly appointed, and the
appointment of such
41
successor Collateral Agent has been accepted by such successor Collateral Agent.
No Collateral Agent shall be discharged from its duties or obligations hereunder
until the collateral and documents and instruments then held by such retiring
Collateral Agent shall have been transferred or delivered to the successor
Collateral Agent, until such retiring Collateral Agent shall have executed and
delivered to the successor Collateral Agent appropriate instruments substituting
such successor Collateral Agent for purposes of this Agreement and assigning the
retiring Collateral Agent's interest in the collateral, to the successor
Collateral Agent. If no successor Collateral Agent shall be appointed, as
aforesaid, or, if appointed, shall not have accepted its appointment, within 30
days after notice of resignation or removal of the retiring Collateral Agent,
then, subject to the provisions hereof, the retiring Collateral Agent may
appoint a successor Collateral Agent with the written consent of the Liquidity
Agent or petition any court of competent jurisdiction for the appointment of a
successor collateral agent. Each such successor Collateral Agent shall provide
the Check-Xxxxxx, the Borrower, ACE, the Administrative Agent, the Lender, each
Liquidity Provider and the Liquidity Agent with its address and telephone
numbers. Notwithstanding the resignation or removal of any Collateral Agent
hereunder, the provisions of this Article X shall continue to inure to the
benefit of such retiring Collateral Agent in respect of any action taken or
omitted to be taken by such retiring Collateral Agent in its capacity as such
while it was Collateral Agent under this Agreement. The Administrative Agent
shall provide prompt notice to each Rating Agency, the Check-Xxxxxx and the
Borrower of the appointment of a successor Collateral Agent.
ARTICLE XI
ASSIGNMENT OF LENDER'S INTEREST
SECTION 11.01 Restrictions on Assignments. Neither Borrower nor
Check-Xxxxxx may assign its rights, or delegate its duties hereunder or any
interest herein, without the prior written consent of the Administrative Agent.
Lender may assign its rights hereunder or its Commitment or the Note to any
Person without the consent of Borrower; provided, however, that if the Lender
has assigned more than 50% of its Commitment hereunder to any Person other than
its related Liquidity Providers, then the Borrower may prepay the facility in
whole pursuant to Section 2.01 and terminate this Agreement and shall not be
required to pay any Prepayment Fee; and provided, further, that prior to the
occurrence of a Termination Event, the Lender may not without the prior written
consent of the Borrower assign its Commitment hereunder to an entity which does
not then either have a short-term unsecured debt rating or issue commercial
paper with a short-term unsecured debt rating, in each case, by one or more
nationally recognized rating agencies, equivalent to the rating of the Lender's
commercial paper notes.
SECTION 11.02 Rights of Assignee. Upon the assignment by Lender in
accordance with this Article XI, the assignee receiving such assignment shall
have all of the rights of Lender with respect to the Transaction Documents and
the Assets (or such portion thereof as has been assigned).
SECTION 11.03 Evidence of Assignment. Any assignment of the Commitment,
the Note and the Assets (or any portion thereof) to any Person may be evidenced
by such instruments or documents as may be satisfactory to the Lender.
42
ARTICLE XII
INDEMNIFICATION
SECTION 12.01 Indemnities by Borrower.
(a) General Indemnity. Without limiting any other rights which
any such Person may have hereunder or under Applicable Law, the
Borrower hereby agrees to indemnify each of the Administrative Agent,
the Lender, the Liquidity Providers, the Liquidity Agent, the
Collateral Agent, each of their respective Affiliates, and all
successors and permitted transferees, participants and assigns and all
officers, directors, shareholders, controlling persons, employees and
agents of any of the foregoing (each an "Indemnified Party"), forthwith
on demand, from and against any and all damages, losses, claims,
liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts") awarded against or
incurred by any of them as a result of a claim arising out of or
relating to the Transaction Documents or the transactions contemplated
thereby, excluding, however, Indemnified Amounts to the extent
determined by a court of competent jurisdiction or in binding
arbitration to have resulted from gross negligence or willful
misconduct on the part of such Indemnified Party. Without limiting the
foregoing, Borrower shall indemnify each Indemnified Party for
Indemnified Amounts arising out of or relating to:
(i) the transfer by Borrower of any interest in any
of its assets other than the grant of a security interest
granted to the Collateral Agent and the other Secured Parties,
pursuant to Section 1.03 (or as otherwise permitted
hereunder);
(ii) any representation or warranty made by Borrower
(or any of its officers or Affiliates) under or in connection
with any Transaction Document, any information or report
delivered by or on behalf of Borrower pursuant hereto, which
shall have been false, incorrect or misleading in any material
respect when made or deemed made (unless so disclosed at the
time of delivery);
(iii) the failure by Borrower or the Check-Xxxxxx to
comply with any Applicable Law, including, without limitation,
the failure to obtain and maintain in full force and effect
any licenses required by any Governmental Authority or the
failure to comply with all required disclosure and other
regulatory requirements, in each case in connection with the
Borrower's and ACE's activities contemplated by the
Transaction Documents or the terms of any of the Transaction
Documents;
(iv) the failure to vest and maintain vested in the
Collateral Agent a first priority perfected security interest
in all of the assets of Borrower free and clear of any Lien,
other than a Lien arising solely as a result of an act of the
Secured Parties, whether existing at the time of any Borrowing
or at any time thereafter;
43
(v) the failure to file, or any delay in filing,
financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other
Applicable Laws with respect to the assets of Borrower,
whether at the time of any Borrowing or at any time
thereafter;
(vi) any failure of Borrower to perform its duties or
obligations in accordance with the provisions of Article VII
or otherwise hereunder or under any other Transaction
Document;
(vii) any failure by Borrower to file any tax returns
or pay any taxes when due;
(viii) any tax or governmental fee, fine or charge
(but not including U.S. federal income taxes upon or measured
by net income or state or local taxes upon or measured by net
income imposed on the Indemnified Parties by the jurisdiction
in which such Indemnified Party is organized or is otherwise
taxable without regard to their participation in the
transactions contemplated by the Transaction Documents), all
interest and penalties (including, but not limited to,
penalties for failure to file returns or pay amounts due)
thereon or with respect thereto, and all out-of-pocket costs
and expenses, including, but not limited to (i) the reasonable
fees and expenses of counsel in defending against the same,
which may arise by reason of the Loans or any interest in the
assets of Borrower, (ii) any fees, fines or charges which may
be imposed as a result of any failure to properly disclose any
fees charged to any consumer in an SSM transaction and (iii)
the reasonable fees and expenses incurred to file any returns
required to be filed to report the same; and
(ix) any and all out-of-pocket costs and expenses
(including reasonable fees and expenses of counsel and other
experts) incurred or suffered by the Collateral Agent in its
capacity as the account holder for any of the Vault Collection
Accounts as a result of any action taken or omitted to be
taken by the Collateral Agent in such capacity or otherwise
incurred or suffered by the Collateral Agent in such capacity,
including, without limitation, all cost and expense associated
with the establishment and maintenance of the Vault Collection
Accounts, to the extent not reimbursed by application of the
Collateral; provided that the Borrower shall not be liable for
any portion of any such costs or expenses resulting from or
attributable to gross negligence or willful misconduct on the
part of the Collateral Agent.
(b) Contest of Tax Claim; After-Tax Basis. If any Indemnified
Party shall have notice of any attempt to impose or collect any tax or
governmental fee or charge for which indemnification will be sought
from Borrower under Section 12.01(a)(viii), such Indemnified Party
shall give prompt and timely notice of such attempt to Borrower and
Borrower shall have the right, at its expense, to participate in any
proceedings resisting or objecting to the imposition or collection of
any such tax, governmental fee or charge. Failure or delay in giving
such notification shall not constitute a waiver of such Indemnified
Party's right to such compensation; provided, that such Indemnified
Party
44
shall not be entitled to compensation under this Section 12.01 for any
Indemnified Amounts incurred or suffered with respect to any date
unless such Indemnified Party shall have notified the Borrower not more
than 90 days after the applicable Indemnified Party shall have notice
of any attempt to impose or collect any tax or governmental fee or
charge for which indemnification will be sought from Borrower under
Section 12.01(a)(vii). Indemnification hereunder shall be in an amount
necessary to make the Indemnified Party whole after taking into account
any tax consequences to the Indemnified Party of the payment of any of
the aforesaid taxes and the receipt of the indemnity provided hereunder
or of any refund of any such tax previously indemnified hereunder,
including the effect of such tax or refund on the amount of tax
measured by income or profits which is or was payable by the
Indemnified Party.
(c) Contribution. If for any reason the indemnification
provided above in this Section 12.01 is unavailable to an Indemnified
Party or is insufficient to hold an Indemnified Party harmless, then
Borrower shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, claim, damage or liability
in such proportion as is appropriate to reflect not only the relative
benefits received by such Indemnified Party on the one hand and
Borrower on the other hand but also the relative fault of such
Indemnified Party as well as any other relevant equitable
considerations.
(d) Available Funds. Payments by Borrower under this Section
12.01 shall be paid solely to the extent funds are available pursuant
to the priorities set forth in Section 3.03.
SECTION 12.02 Indemnities by Check-Xxxxxx.
(a) Indemnity. Without limiting any other rights which the
Borrower or any Indemnified Party may have hereunder or under
Applicable Law, the Check-Xxxxxx hereby agrees to indemnify the
Borrower and the Indemnified Parties, forthwith on demand, from and
against any and all Indemnified Amounts awarded against or incurred by
any of them to the extent that such Indemnified Amounts are a result of
a claim arising out of or relating to (i) the Check-Xxxxxx'x
performance of, or failure to perform, any of its duties or obligations
under or in connection with any Transaction Documents, (ii) any
representation or warranty made by the Check-Xxxxxx under or in
connection with any Transaction Document, any Borrowing Base Report or
any Servicing Report or any other information or request delivered by
or on behalf of Check-Xxxxxx pursuant hereto, which shall have been
false, incorrect or misleading in any material respect when made or
deemed made (unless so disclosed at the time of delivery), (iii) the
co-mingling of any Cash or other Assets with any of the assets of the
Check-Xxxxxx, (iv) any failure by the Check-Xxxxxx to pay any taxes
when due, (v) any failure of Check-Xxxxxx to comply with any Applicable
Law, including, without limitation, the failure to obtain and maintain
in full force and effect any licenses required by any Governmental
Authority or the failure to comply with all required disclosure and
other regulatory requirements, in each case in connection with the
Borrower's and ACE's activities contemplated by the Transaction
Documents or the terms of any of the Transaction Documents or (vi) any
theft, fraud, stealing or misappropriation of Assets by the employees,
officers, directors or representatives of the Check-Xxxxxx, excluding,
however, Indemnified Losses to the
45
extent determined by a court of competent jurisdiction or in binding
arbitration to have resulted from gross negligence or willful
misconduct on the part of such Indemnified Party or the Borrower.
(b) Contribution. If for any reason the indemnification
provided above in this Section 12.02 is unavailable to the Borrower or
an Indemnified Party or is insufficient to hold the Borrower or an
Indemnified Party harmless, then the Check-Xxxxxx shall contribute to
the amount paid by the Borrower or such Indemnified Party as a result
of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by the
Borrower or such Indemnified Party on the one hand and the Check-Xxxxxx
on the other hand, but also the relative fault of such Indemnified
Party (if any) and the Borrower and any other relevant equitable
considerations.
SECTION 12.03 Indemnities by ACE.
(a) Indemnity. Without limiting any other rights which the
Borrower or any Indemnified Party may have hereunder or under
Applicable Law, ACE hereby agrees to indemnify the Borrower and the
Indemnified Parties, forthwith on demand, from and against any and all
Indemnified Amounts awarded against or incurred by any of them to the
extent that such Indemnified Amounts are a result of a claim arising
out of or relating to (i) any tax or governmental fee, fine or charge
(but not including U.S. federal income taxes upon or measured by net
income or state or local taxes upon or measured by net income imposed
on the Borrower or the Indemnified Parties by the jurisdiction in which
the Borrower or such Indemnified Party is organized or is otherwise
taxable without regard to their participation in the transactions
contemplated by the Transaction Documents), all interest and penalties
(including, but not limited to, penalties for failure to file returns
or pay amounts due) thereon or with respect thereto, and all
out-of-pocket costs and expenses, including, but not limited to (x) the
reasonable fees and expenses of counsel in defending against the same,
which may arise by reason of or relating to the Transaction Documents
and (y) the reasonable fees and expenses incurred to file any returns
required to be filed to report the same, (ii) ACE's performance of, or
failure to perform, any of its duties or obligations under or in
connection with any Transaction Documents, (iii) any representation or
warranty made by ACE under or in connection with any Transaction
Document or any other information or request delivered by or on behalf
of ACE pursuant hereto, which shall have been false, incorrect or
misleading in any material respect when made or deemed made (unless so
disclosed at the time of delivery), (iv) the co-mingling of any Cash or
other Assets with any of the assets of the ACE, (v) any failure of the
Borrower or ACE to comply with any Applicable Law, including, without
limitation, the failure to obtain and maintain in full force and effect
any licenses required by any Governmental Authority or the failure to
comply with all required disclosure and other regulatory requirements,
in each case in connection with the Borrower's and ACE's activities
contemplated by the Transaction Documents or the terms of any of the
Transaction Documents or (vi) any theft, fraud, stealing or
misappropriation of Assets by the employees, officers, directors or
representatives of ACE, excluding, however, Indemnified Losses to the
extent determined by a court of competent jurisdiction or in binding
arbitration to have resulted from gross negligence or
46
willful misconduct on the part of such Indemnified Party or the
Borrower. ACE further agrees to indemnify and hold harmless the
Collateral Agent (to the extent not indemnified or reimbursed by the
Borrower) from and against any and all out-of-pocket costs and expenses
(including reasonable fees and expenses of counsel and other experts)
incurred or suffered by the Collateral Agent in its capacity as the
account holder for any of the Vault Collection Accounts as a result of
any action taken or omitted to be taken by the Collateral Agent in such
capacity or otherwise incurred or suffered by the Collateral Agent in
such capacity, including, without limitation, all cost and expense
associated with the establishment and maintenance of the Vault
Collection Accounts, to the extent not reimbursed by the Borrower or by
application of the Collateral; provided that ACE shall not be liable
for any portion of any such costs or expenses resulting from or
attributable to gross negligence or willful misconduct on the part of
the Collateral Agent.
(b) Contest of Tax Claim; After-Tax Basis. If the Borrower or
any Indemnified Party shall have notice of any attempt to impose or
collect any tax or governmental fee or charge for which indemnification
will be sought from ACE under Section 12.03(a)(i), the Borrower or such
Indemnified Party shall give prompt and timely notice of such attempt
to ACE and ACE shall have the right, at its expense, to participate in
any proceedings resisting or objecting to the imposition or collection
of any such tax, governmental fee or charge. Failure or delay in giving
such notification shall not constitute a waiver of such party's right
to such compensation; provided, that such party shall not be entitled
to compensation under this Section 12.03 for any Indemnified Amounts
incurred or suffered with respect to any date unless such party shall
have notified ACE not more than 90 days after the applicable party
shall have notice of any attempt to impose or collect any tax or
governmental fee or charge. Indemnification hereunder shall be in an
amount necessary to make the Borrower or Indemnified Party whole after
taking into account any tax consequences to such party of the payment
of any of the aforesaid taxes and the receipt of the indemnity provided
hereunder or of any refund of any such tax previously indemnified
hereunder, including the effect of such tax or refund on the amount of
tax measured by income or profits which is or was payable by such
party.
(c) Contribution. If for any reason the indemnification
provided above in this Section 12.03 is unavailable to the Borrower or
an Indemnified Party or is insufficient to hold the Borrower or an
Indemnified Party harmless, then ACE shall contribute to the amount
paid or payable by the Borrower or such Indemnified Party as a result
of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received the
Borrower or by such Indemnified Party on the one hand and ACE on the
other hand but also the relative fault of the Borrower or such
Indemnified Party as well as any other relevant equitable
considerations.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01 Amendments, Etc. No amendment or waiver of any provision
of this Agreement nor consent to any departure by Borrower or Check-Xxxxxx
therefrom shall in any event be effective unless the same shall be in writing
and signed by each of the parties hereto.
47
The parties acknowledge that, before entering into such an amendment or granting
such a waiver or consent, Lender may also be required to obtain the approval of
some or all of the Liquidity Providers or to obtain confirmation from the Rating
Agencies that such amendment, waiver or consent will not result in a withdrawal
or reduction of the ratings of the Commercial Paper Notes.
SECTION 13.02 Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including facsimile communication) and shall be personally delivered or sent by
express mail or by overnight courier service, or by courier, or by certified
mail, postage prepaid, or by facsimile, to the intended party at the address or
facsimile number of such party set forth under its name on the signature pages
hereof or at such other address or facsimile number as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective, (a) if personally delivered or sent by
express mail or courier or if sent by certified mail, when received, and (b) if
transmitted by facsimile, when sent, receipt confirmed by telephone.
SECTION 13.03 No Waiver; Remedies. No failure on the part of the
Administrative Agent, Liquidity Agent, any other Secured Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 13.04 Binding Effect; Survival. This Agreement shall be binding
upon and inure to the benefit of Borrower, the Administrative Agent, the Lender,
ACE, the Check-Xxxxxx, the Collateral Agent, the Liquidity Agent and their
respective successors and permitted assigns, and the provisions of Section 4.02
and Article XII shall inure to the benefit of the Indemnified Parties,
respectively, and their respective successors and permitted assigns; provided,
however, nothing in the foregoing shall be deemed to authorize any assignment
not permitted by Section 11.01. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until the Final Payout Date. The
indemnification and payment provisions of Article XII and Sections 4.01, 4.02,
4.03, 13.05, 13.06, 13.07 and 13.14, subject to the limitations, if any, set
forth therein, shall be continuing and shall survive any termination of this
Agreement.
SECTION 13.05 Costs, Expenses and Taxes. In addition to its obligations
under Article XII, ACE agrees to pay on demand:
(a) all costs and expenses incurred by the Secured Parties and
their respective Affiliates in connection with the negotiation,
preparation, execution and delivery, the administration (including
periodic auditing as provided in this Agreement), the amendment or
syndication thereof or the enforcement of, or any actual or claimed
breach of, the Transaction Documents, including, without limitation (i)
the reasonable fees and expenses of counsel to any of such Persons
incurred in connection with any of the foregoing or in advising such
Persons as to their respective rights and remedies under any of the
Transaction Documents, and (ii) all reasonable out-of-pocket expenses
(including reasonable fees and expenses of independent accountants),
incurred in connection with
48
any review of Borrower's or the Check-Xxxxxx'x books and records either
prior to the execution and delivery hereof or pursuant to and subject
to the maximum amounts described in Sections 7.01(c) and 7.04(c) (such
out-of-pocket expenses are typically expected to include periodic asset
audit and field examination expenses and legal and rating agency
expenses incurred in association with any amendments to any of the
Transaction Documents); and
(b) all stamp and other taxes and fees payable or determined
to be payable in connection with the execution, delivery, filing and
recording of the Transaction Documents, and agrees to indemnify each
Indemnified Party against any liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes and fees.
SECTION 13.06 No Proceedings. Borrower, the Check-Xxxxxx, ACE, the
Collateral Agent and the Liquidity Agent each hereby agrees that it will not
institute against Lender, or join any other Person in instituting against
Lender, any insolvency proceeding (namely, any proceeding of the type referred
to in the definition of Event of Bankruptcy) so long as any commercial paper
issued by Lender shall be outstanding or there shall not have elapsed one year
plus one day since the last day on which any such commercial paper shall have
been outstanding. The Check-Xxxxxx and ACE each hereby agrees that it will not
institute against Borrower, or join any other person in instituting against
Borrower, any insolvency proceeding (namely, any proceeding of the type referred
to in clause (a) of the definition of "Event of Bankruptcy") so long as any debt
of Borrower shall be outstanding hereunder or there shall not have elapsed one
year plus one day since the last day on which any such debt shall have been
outstanding. The foregoing shall not limit the Check-Xxxxxx'x right to file any
claim in or otherwise take any action with respect to any insolvency proceeding
that was instituted by any other Person. The provisions of this Section 13.06
shall survive the termination of this Agreement.
SECTION 13.07 Confidentiality.
(a) Each of the parties to this Agreement shall maintain, and
shall cause each of its employees and officers to maintain, the
confidentiality of this Agreement and all information with respect to
the other parties hereto, including all information regarding the
Borrower, ACE and the Check-Xxxxxx and their respective businesses
obtained in connection with the structuring, negotiating and execution
of the transactions contemplated herein, except that each such party
and its officers and employees may (i) disclose such information to its
external accountants, attorneys, investors, potential investors and
their agents ("Excepted Persons"); provided, however, that each
Excepted Person shall, as a condition to any such disclosure, agree for
the benefit of the other parties hereto that such information shall be
used solely in connection with such Excepted Person's evaluation of the
Borrower, the Check-Xxxxxx and their respective affiliates or such
Excepted Person's relationship with such Person, (ii) disclose the
existence of this Agreement, but not the financial terms thereof, (iii)
disclose such information as is required by an Applicable Law or an
order of an judicial or administrative proceeding and (iv) disclose
this Agreement and related information in any suit, action, proceeding
or investigation (whether in law or in equity or pursuant to
arbitration) involving any of the Transaction Documents for the purpose
of defending itself, reducing its liability, or protecting or
exercising any of its claims, rights, remedies,
49
or interests under or in connection with any of the Transaction
Documents. It is understood that the financial terms that may not be
disclosed except in compliance with this Section 13.07(a) include all
fees and other pricing terms and all Events of Default, Check-Xxxxxx
Events of Default and priority of payment provisions.
(b) Anything herein to the contrary notwithstanding, the
Borrower and the Check-Xxxxxx each hereby consents to the disclosure of
any nonpublic information with respect to it (i) to the other parties
hereto or the Liquidity Providers, (ii) by the other parties hereto or
the Liquidity Providers to any prospective or actual assignee or
participant of any of them or (iii) by the Administrative Agent or the
Liquidity Agent to any rating agency, Commercial Paper Note dealer or
provider of a surety, guaranty or credit or liquidity enhancement to
the Lender and to any officers, directors, employees, outside
accountants and attorneys of any of the foregoing, provided each such
Person is informed of the confidential nature of such information. In
addition, any such nonpublic information may be disclosed as required
pursuant to any law, rule, regulation, direction, request or order of
any judicial, administrative or regulatory authority or proceedings
(whether or not having the force or effect of law).
(c) Notwithstanding anything herein to the contrary, the
foregoing shall not be construed to prohibit (i) disclosure of any and
all information that is or becomes publicly known, (ii) disclosure of
any and all information (A) if required to do so by any applicable
statute, law, rule or regulation, (B) to any government agency or
regulatory body having or claiming authority to regulate or oversee any
respects of the applicable Person's business or that of their
Affiliates, (C) pursuant to any subpoena, civil investigative demand or
similar demand or request of any court, regulatory authority,
arbitrator or arbitration to which the applicable Person, or its
Affiliates or an officer, director, employer or shareholder thereof is
a party, (D) in any preliminary or final offering circular,
registration statement or contract or other document pertaining to the
transactions contemplated herein approved in advance by the Borrower,
ACE or Check-Xxxxxx or (E) to any affiliate, independent or internal
auditor, agent, employee or attorney of the applicable Person having a
need to know the same, provided that such Person advises such recipient
of the confidential nature of the information being disclosed, or (iii)
any other disclosure authorized by the Borrower, ACE or Check-Xxxxxx.
SECTION 13.08 Captions and Cross References. The various captions
(including, without limitation, the table of contents) in this Agreement are
provided solely for convenience of reference and shall not affect the meaning or
interpretation of any provision of this Agreement. Unless otherwise indicated,
references in this Agreement to any Section, Appendix, Schedule or Exhibit are
to such Section of or Appendix, Schedule or Exhibit to this Agreement, as the
case may be, and references in any Section, subsection, or clause to any
subsection, clause or subclause are to such subsection, clause or subclause of
such Section, subsection or clause.
SECTION 13.09 Integration. This Agreement contains a final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire understanding among the
parties hereto with respect to the subject matter hereof, superseding all prior
oral or written understandings.
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SECTION 13.10 Governing Law. THIS AGREEMENT, INCLUDING THE RIGHTS AND
DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF
NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF
NEW YORK, BUT OTHERWISE WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES).
SECTION 13.11 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY OTHER TRANSACTION
DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT OR DOCUMENT DELIVERED OR WHICH MAY
BE IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING
OR OTHER RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT A JURY TRIAL.
SECTION 13.12 Consent to Jurisdiction; Waiver of Immunities. EACH OF
THE PARTIES HERETO HEREBY ACKNOWLEDGES AND AGREES THAT:
(a) IT IRREVOCABLY (i) SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL COURT, AND, IF FEDERAL
JURISDICTION IS NOT AVAILABLE, OF ANY
NEW YORK STATE COURT, IN EITHER
CASE SITTING IN
NEW YORK,
NEW YORK, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, (ii) AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH
NEW YORK STATE OR FEDERAL COURT, AND (iii) WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(b) TO THE EXTENT THAT IT HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID TO EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, IT HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT.
SECTION 13.13 Execution in Counterparts; Severability. This Agreement
may be executed in any number of counterparts and by the different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement. In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the
51
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 13.14 No Recourse Against Certain Parties. No recourse under or
with respect to any obligation, covenant or agreement (including, without
limitation, the payment of any fees or any other obligations) of any Secured
Party as contained in any Transaction Document or any other agreement,
instrument or document entered into by it pursuant thereto or in connection
therewith shall be had against any incorporator, affiliate, administrator,
stockholder, officer, employee or director of such Secured Party, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that the
agreements of each Secured Party contained in the Transaction Documents and all
of the other agreements, instruments and documents entered into by it pursuant
thereto or in connection therewith are, in each case, solely the respective
corporate obligations of such Secured Party, and that no personal liability
whatsoever shall attach to or be incurred by any incorporator, stockholder,
affiliate, administrator, officer, employee or director under or by reason of
any of the obligations, covenants or agreements of such Secured Party contained
in any Transaction Document or in any other such instruments, documents or
agreements, or which are implied therefrom, and that any and all personal
liability of each incorporator, stockholder, affiliate, administrator, officer,
employee or director of any Secured Party for breaches by such Secured Party of
any such obligations, covenants or agreements, which liability may arise either
at common law or at equity, by statute or otherwise, is hereby expressly waived
as a condition of and in consideration for the execution of this Agreement. The
provisions of this Section 13.14 shall survive the termination of this
Agreement.
52
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ACE FUNDING LLC
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
ACE Funding LLC
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxx X. Xxxxxx
With a copy to:
ACE Cash Express, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxx X. Xxxxxx
S-1
LOAN AND SERVICING AGREEMENT
ACE CASH EXPRESS, INC.
individually and as Check-Xxxxxx
By: /s/ Xxx X. Xxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxx
Title: Sr. Vice President and Chief Financial
Officer
ACE Cash Express, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxx X. Xxxxxx
S-2
LOAN AND SERVICING AGREEMENT
AUTOBAHN FUNDING COMPANY LLC
as Lender
By: DZ BANK AG DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK FRANKFURT AM MAIN
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxx Xxxxxx
-------------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
Autobahn Funding Company LLC
c/o DZ Bank AG Deutsche Zentral-Genossenschaftsbank
Frankfurt am Main
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Asset Securitization Group
S-3
LOAN AND SERVICING AGREEMENT
DZ BANK AG DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK
FRANKFURT AM MAIN
as Administrator and as Liquidity Agent
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxx Xxxxxx
-----------------------------------
Name: Xxx Xxxxxx
Title: Vice President
DZ Bank AG Deutsche Zentral-
Genossenschaftsbank Frankfurt am Main
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Asset Securitization Group
S-4
LOAN AND SERVICING AGREEMENT
U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent
By: /s/ Xxx X. Xxxxxx
------------------------------------
Name: Eve. X. Xxxxxx
Title: Vice President
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000 or 1797
Attention: Structured Finance/ACE Funding LLC
S-5
LOAN AND SERVICING AGREEMENT
APPENDIX A
DEFINITIONS
This is Appendix A to the
Loan and Servicing Agreement dated as of
December 18, 2002 among ACE Funding LLC, ACE Cash Express, Inc., Autobahn
Funding Company LLC, DZ Bank AG Deutsche Zentral-Genossenschaftsbank Frankfurt
am Main and U.S. Bank National Association (as amended, supplemented or
otherwise modified from time to time, this "Agreement"). Each reference in this
Appendix A to any Section, the Preamble, Appendix or Exhibit refers to such
Section of or Appendix, Preamble or Exhibit to this Agreement.
A. Defined Terms. As used in this Agreement, unless the context
requires a different meaning, the following terms have the meanings indicated
hereinbelow:
"Account Control Agreement" means the account control agreement between
the Collateral Agent and the Borrower, substantially in the form of Exhibit
5.01(w) hereto.
"Accrued Facility Costs" means, on any day during the Usage Period, the
aggregate of (a) the accrued and unpaid Facility Fee, (b) the accrued and unpaid
Collateral Agent Fee, (c) the accrued and unpaid Servicing Fees, (d) the accrued
and unpaid Approved Vault Bank Fees, (e) the accrued and unpaid Approved Courier
Fee, and (f) all other accrued and unpaid fees, expenses and indemnities payable
by the Borrower owing under this Agreement.
"Administrative Agent" has the meaning set forth in the preamble.
"Advance Percentage" means, at any time, the amount, expressed as a
percentage, determined by dividing (i) the Facility Amount by (ii) the Net
Balance.
"Affected Party" means each of the Lender, each Liquidity Provider, any
permitted assignee or participant of the Lender or any Liquidity Provider, the
Administrative Agent, the Liquidity Agent and any permitted assignee or
participant thereof.
"Affiliate" when used with respect to a Person means any other Person
controlling, controlled by, or under common control with, such Person.
"Agreement" has the meaning set forth in the preamble.
"Annual Commitment Fee" has the meaning set forth in the Fee Letter.
"Applicable Law" means all existing and future applicable laws, rules,
regulations (including proposed, temporary and final income tax regulations),
statutes, treaties, codes, ordinances, permits, certificates, orders and
licenses of and interpretations by any Governmental Authority, and applicable
judgments, decrees, injunctions, writs, orders or like action of any court,
arbitrator or other administrative, judicial or quasi-judicial tribunal or
agency of competent jurisdiction.
"Approved Bank" means Imperial Capital Bank and each other issuer of
RALs approved by the Administrative Agent at the request of the Borrower.
"Approved Courier" means a Person who performs armored car carrier cash
transportation services for the Borrower pursuant to an Approved Courier
Agreement, including withdrawal of Cash from the applicable Approved Vault
Banks, transportation of Cash and, as applicable, Checks, to and from SSMs and
who is approved in writing by the Administrative Agent. Initially, Xxxxxx, Fargo
& Co. and AT Systems Inc. shall be designated Approved Couriers hereunder.
"Approved Courier Agreement" means an agreement substantially in the
form of Annex I, approved in writing by ACE, the Administrative Agent, the
Liquidity Agent, and the Collateral Agent, between the Borrower and an Approved
Courier.
"Approved Courier Fee" means the fees and expenses payable during the
Usage Period by the Borrower to each Approved Courier pursuant to an Approved
Courier Agreement, which fee shall be payable by the Borrower pursuant to
Section 3.03.
"Approved Tax Provider" means H&R and each other provider of tax return
services approved by the Administrative Agent at the request of the Borrower.
"Approved Vault Bank" means each financial institution approved in
writing by the Administrative Agent. Each Approved Vault Bank must have a
long-term unsecured rating of at least "A2" or the equivalent by Moody's;
provided that Hibernia Bank must have a long-term unsecured rating of at least
"Baa2" or its equivalent. Initially, Xxxxx Fargo Bank, Wachovia Bank, National
Association, U.S. Bank National Association, National City Bank, Hibernia Bank,
Comerica Bank, AmSouth Bank and Bank of America, N.A. shall be designated as
Approved Vault Banks hereunder.
"Approved Vault Bank Agreement" means, with respect to any Vault
Collection Account in the name of the Borrower, an agreement substantially in
the form of Annex II approved in writing by ACE, the Administrative Agent, the
Liquidity Agent, and the Collateral Agent between an Approved Vault Bank and the
Borrower.
"Approved Vault Bank Fee" means the fees and expenses payable during
the Usage Period by the Borrower to each Approved Vault Bank pursuant to an
Approved Vault Bank Agreement or account agreement, as applicable, which fee
shall be payable by the Borrower pursuant to Section 3.03.
"Asset Interest" means the Note and all rights in the Assets and the
Transaction Documents related to the Note.
"Assets" means all of the Borrower's right, title and interest in, to
and under: (i) the Cash; (ii) the Checks; (iii) the Trust Collection Account,
and all investments and funds therein; (iv) each Vault Collection Account, and
all investments and funds therein; (v) the Reserve Account, and all investments
and funds therein; (vi) all Related Rights; (vii) the Approved Courier
Agreements, the Electronic Presentment Agreement and Approved Vault Bank
Agreements; (viii) all books and records related to the foregoing; (ix) all
Collections and other proceeds thereof; and (x) all proceeds of any and all of
the foregoing.
Appendix A-2
"Autobahn" means Autobahn Funding Company LLC, a Delaware limited
liability company, its successors and assigns.
"Base Rate" means, on any date, a fluctuating rate of interest per
annum equal to the rate of interest most recently publicly announced by JPMorgan
Chase Bank at its principal offices in
New York, New York as its prime
commercial lending rate. The Base Rate is not necessarily intended to be the
lowest rate of interest determined by the Liquidity Agent in connection with
extensions of credit. Any determination of the Base Rate by the Liquidity Agent
shall, in the absence of manifest error, be conclusive and binding upon the
Borrower.
"Borrower" has the meaning set forth in the preamble.
"Borrowing" means the aggregate Loans made on a specific Borrowing
Date.
"Borrowing Base Report" has the meaning set forth in Section 8.03(i).
"Borrowing Date" means each date on which a Borrowing is consummated.
"Borrowing Notice" has the meaning set forth in Section 1.02(a).
"Business Day" means any day of the year other than a Saturday or
Sunday on which (a) banks are not required or authorized to be closed in New
York, New York, Dallas, Texas and the State in which the Corporate Trust Office
of the Collateral Agent is located and (b) if the term "Business Day" is used in
connection with the Eurodollar Rate, dealings in United States dollar deposits
are carried on in the London interbank market.
"Capital Limit" has the meaning set forth in Section 1.01.
"Cash" means all cash or deposits, as applicable, originally funded
pursuant to a Borrowing hereunder, whether located in SSMs, in the vault of an
Approved Courier, in an Approved Vault Bank or otherwise in possession of an
Approved Courier or an Approved Vault Bank.
"Cash Inventory Provision Fee" means, for each Usage Period, a fee
equal to the sum of (i) the product of (x) 4.50% and (y) the average daily
Facility Amount during such Usage Period plus (ii) the Supplemental Cash
Inventory Provision Fee for such Usage Period. The Cash Inventory Provision Fee
may be amended by mutual agreement between the Borrower and the Check Xxxxxx
prior to any Usage Period.
"Change in Control" means, (i) with respect to the Borrower, that at
any time, ACE shall fail to own, directly or indirectly, free and clear of any
adverse claim, 100% of the outstanding membership interests of the Borrower, and
(ii) with respect to ACE, the acquisition by any Person or group of Persons
(within the meaning of Section 13 or 14 of the Exchange Act) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under the Exchange Act) of issued and outstanding shares of
the capital stock of ACE entitled (without regard to the occurrence of any
contingency) to vote for the election of members of the board of directors of
ACE and having a then present right to exercise 50% or more of the voting power
for the election of members of the board of directors of ACE.
Appendix A-3
"Check Cashing Fee" means, for each Check cashed by a Tax Filer in an
SSM during the Usage Period, the minimum amount charged by ACE set forth on
Schedule V in the market in which such Check is cashed (as such Schedule V is
amended or updated from time to time with notice to and the consent of the
Administrative Agent, which consent shall not be unreasonably withheld, provided
that the consent of Administrative Agent shall not be required if the fees are
not reduced below 2.50% of the face amount of the Checks cashed).
"Check" means a cashier's check issued by an Approved Bank in
conjunction with an income tax refund or income tax loan that has been cashed by
a Tax Filer at an SSM, whether such check is in an SSM, in the vault of an
Approved Courier or an Approved Vault Bank or otherwise in the possession or
control of an Approved Courier or an Approved Vault Bank following being cashed
at an SSM.
"Check-Xxxxxx" means ACE initially, in its capacity as Check-Xxxxxx
hereunder, and any successor Check-Xxxxxx designated pursuant to Section 8.07.
"Check-Xxxxxx Event of Default" means each of the following events:
(a) Failure by the Check-Xxxxxx to deliver any payments,
electronic presentment orders, Collections or proceeds of the Assets as
required under the terms of any Transaction Document;
(b) Inability or failure by the Check-Xxxxxx to satisfy any
reporting, certification, notification or documentation requirements
under the terms of any Transaction Document and such failure remains
uncured for more than 30 days after written notice by the
Administrative Agent, the Borrower or the Collateral Agent;
(c) Failure on the part of the Check-Xxxxxx to observe or
perform any covenant set forth in any Transaction Document and such
failure remains uncured for more than 30 days after written notice by
the Administrative Agent, the Borrower or the Collateral Agent;
(d) Any representation, warranty or statement of the
Check-Xxxxxx made in any Transaction Document shall prove to have been
false or incorrect in any material respect and such condition continues
unremedied for more than 30 days after written notice by the
Administrative Agent, the Borrower or the Collateral Agent;
(e) The occurrence of a Change in Control with respect to ACE
(unless approved in writing by the Administrative Agent);
(f) The net worth of the Check-Xxxxxx (calculated in
accordance with GAAP) does not exceed $50,000,000;
(g) The Defaulted Amount exceeds $250,000; and
(h) There shall exist any event or occurrence that would
reasonably be expected to cause a Material Adverse Effect;
Appendix A-4
(i) An Event of Bankruptcy shall have occurred and remain
continuing with respect to the Check-Xxxxxx;
(j) the Check-Xxxxxx fails to deliver the Borrowing Base
Report or Servicing Report within one Business Day of the date required
hereby; and
(k) The Check-Xxxxxx shall default in any payment obligation
under any agreement relating to the SSMs and such payment default shall
continue for a period of 5 days.
"Check-Cashing Payment" means, for any Usage Period, an amount equal to
the aggregate Check Cashing Fees charged by ACE minus the aggregate Cash
Inventory Provision Fee for such Usage Period.
"Collateral Agent" means U.S. Bank National Association, a national
banking association, together with any successors thereto.
"Collateral Agent Fee" means, with respect to any Monthly Period during
the Usage Period, the fee payable by the Borrower pursuant to that certain
letter agreement with the Collateral Agent attached as Annex VI.
"Collections" means, with respect to the Assets, (i) all funds which
are received by Borrower or Check-Xxxxxx with respect to such Assets and,
without duplication, the Pledged Collateral, including any insurance proceeds
related thereto, and all payments in respect of Related Rights, and (ii) all
Recoveries.
"Commercial Paper Holders" means the holders from time to time of the
Commercial Paper Notes.
"Commercial Paper Notes" means short-term promissory notes issued or to
be issued by Lender to fund its investments in financial assets.
"Commitment" means the obligation of Lender to make Loans pursuant to
this Agreement.
"Company Note" means the non-negotiable term note issued by the
Borrower and payable to the Check-Xxxxxx, substantially in the form of Exhibit
5.01(u) hereto.
"Corporate Trust Office" means the principal office of the Collateral
Agent which at any particular time its corporate trust business shall be
administered, which office is initially located at 000 Xxxx Xxxxx Xxxxxx, Xx.
Xxxx, Xxxxxxxxx 00000, Attention: Structured Finance/Ace Cash Express.
"CP Rate" means, with respect to any Interest Period, the per annum
rate equal to the weighted average of the per annum rates paid or payable by the
Lender from time to time as interest on or otherwise (by means of interest rate
xxxxxx or otherwise) in respect of the Commercial Paper Notes (or other
Borrowings to fund small or odd commercial paper market) that is allocated, in
whole or in part, by the Administrative Agent to fund or maintain the Asset
Appendix A-5
Interest during such period, as determined by the Administrative Agent;
provided, the "CP Rate" shall be calculated in a manner which includes the costs
and expenses of the Lender of issuing the related Commercial Paper Notes,
including all dealer commissions thereon and note issuance costs in connection
therewith.
"Defaulted Amount" means, as of any Reporting Date, for any Monthly
Period, the excess (if positive) of (a) the outstanding amount of Defaulted
Assets during such Monthly Period over (b) the aggregate amount of Collections
during such Monthly Period on Assets that became Defaulted Assets in previous
Monthly Periods.
"Defaulted Asset" means any Asset as to which:
(a) The related Check has not been fully collected upon within
(I) 3 Business Days from the date on which the Approved Vault Bank
presented such Check to an Approved Bank for payment or (II) if the
Electronic Presentment Agreement is in place, 3 Business Days from the
date the Check is cashed at the applicable SSM;
(b) The Check has not been presented to the applicable
Approved Bank by the applicable Approved Vault Bank within 7 Business
Days of the cashing of such Check at the applicable SSM or, if the
Electronic Presentment Agreement is in place, the requisite information
with respect to such Check has not been presented in accordance with
the terms thereof by ACE within 1 Business Day of the cashing of such
check at the applicable SSM (or within 2 Business Days in the case of
an "Exception" identified by Household Tax Masters in accordance with,
and as defined in, the Electronic Presentment Agreement);
(c) The related Cash or Check has been stolen or, for a period
of more than 5 Business Days, is unaccounted for; or
(d) The related Check is returned by the Approved Bank
subsequent to the Approved Bank's honoring of such Check.
"Denied Checks Amount" means, as of any Reporting Date, for any Monthly
Period, the outstanding face amount of Checks that became Defaulted Assets as a
result of an Approved Bank's refusal to honor such Checks during such Monthly
Period for reasons other than such Checks being determined to be fraudulent or
stolen.
"Diebold SSM" means the self-service check cashing machines leased or
owned by ACE and manufactured by Xxxxxxx Credit Corporation or Diebold,
Incorporated.
"Dollars" means dollars in lawful money of the United States of
America.
"DZ Bank" has the meaning set forth in the preamble.
"Electronic Presentment Agreement" means the electronic presentment
agreement among Household Tax Masters, Imperial Capital Bank, a California
state-chartered bank, ACE, the Borrower and H&R, substantially in the form of
Exhibit 5.01(v) hereto.
Appendix A-6
"Eligible Assets" means, at any time, an Asset that, with respect to
Checks:
(a) Is a cashier's check issued by an Approved Bank
substantially in the form attached hereto as Annex IV;
(b) Which, at the time of the automatic endorsement of such
Check by the SSM, was not subject to any Liens;
(c) Was issued by an Approved Bank in connection with a valid
RAL from such Approved Bank and the amount thereof does not exceed the
applicable Refund;
(d) Is in the possession of either an Approved Courier, an
Approved Vault Bank or an SSM and has not been honored by an Approved
Bank;
(e) Was automatically endorsed by the SSM to read "Void ACE
Cash Express Void";
(f) Is Dollar denominated;
(g) Is payable to a Tax Filer for whom a related Tax Filer
Account has been established and as to whom all requirements of the
related RAL Agreement have been met;
(h) Relates to a Refund as to which the IRS has given notice
that the Refund has been accepted, that the related Tax Filer has no
outstanding debts according to the IRS' debt indicator, and no apparent
mathematical errors have been found in the related tax filing;
(i) At the time of issuance to a Tax Filer, all of ACE's check
cashing requirements have been met; and
(j) Is not a Defaulted Asset.
and, with respect to Cash:
(a) Is in an SSM, a Vault Collection Account or in the
possession of an Approved Courier; and
(b) Is not a Defaulted Asset.
"Eligible Investments" means any one or more of the following
obligations or securities:
(ii) direct non-callable obligations of, and non-callable
obligations fully guaranteed by, the United States of America, or any
agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the
United States of America;
(iii) demand and time deposits in, certificates of deposits
of, and bankers' acceptances issued by, any depository institution or
trust company incorporated under the
Appendix A-7
laws of the United States of America or any state thereof, having a
combined capital and surplus of at least $250,000,000, and subject to
supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or contractual
commitment providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution that is the
principal Subsidiary of a holding company, the commercial paper or
other short-term debt obligations of such holding company) are rated
"P-1" by Moody's and "F1" by Fitch;
(iv) repurchase obligations with respect to and collateralized
by (A) any security described in clause (i) above or (B) any other
security issued or guaranteed by an agency or instrumentality of the
United States of America, in each case entered into with a depository
institution or trust company (acting as principal) of the type
described in clause (ii) above, provided that the Collateral Agent has
taken delivery of such security;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations, but excluding
Commercial Paper Notes) payable on demand or on a specified date not
more than one year after the date of issuance thereof rated "P-1" by
Moody's and "F1" by Fitch at the time of such investment; and
(vi) interests in any money market fund which at the date of
acquisition of the interest therein (including any such fund that is
managed by the Collateral Agent or an Affiliate of the Collateral Agent
or for which the Collateral Agent or an Affiliate of the Collateral
Agent acts as an advisor) and throughout the time the interest therein
exists has a rating of "AAA" by Standard & Poor's and "Aaa" by Moody's.
"Eligible Pool Balance" means the sum of all Eligible Assets minus the
aggregate amount of Check Cashing Fees on the outstanding Eligible Assets
related to Checks.
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurodollar Rate (Reserve Adjusted)" means, with respect to any
Interest Period and any portion of the Asset Interest funded pursuant to the
Liquidity Agreement, a rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
------------------
(Reserve Adjusted) 1-Eurodollar
Reserve Percentage
where:
"Eurodollar Rate" means, with respect to any Interest Period, the rate
per annum at which Dollar deposits in immediately available funds are offered to
the Eurodollar Office of the Liquidity Agent two Eurodollar Business Days prior
to the beginning of such period by prime banks in the interbank Eurodollar
market at or about 11:00 a.m., New York City time, for
Appendix A-8
delivery on the first day of such Interest Period, for the number of days
comprised therein and in an amount equal or comparable to the amount of such
portion of the Asset Interest.
"Eurodollar Business Day" means a Business Day on which dealings are
carried on in the Eurodollar interbank market.
"Eurodollar Reserve Percentage" means, with respect to any Interest
Period, the then applicable percentage (expressed as a decimal) prescribed by
the Federal Reserve Board for determining reserve requirements applicable to
"Eurocurrency Liabilities" pursuant to Regulation D.
"Event of Bankruptcy" shall be deemed to have occurred with respect to
a Person if either:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding up,
or composition or readjustment of debts of such Person, the appointment
of a trustee, receiver, custodian, liquidator, assignee, sequestrator
or the like for such Person or all or substantially all of its assets,
or any similar action with respect to such Person under any law
relating to bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, and such case or proceeding shall
continue undismissed, or unstayed and in effect, for a period of 45
consecutive days; or an order for relief in respect of such Person
shall be entered in an involuntary case under the federal bankruptcy
laws or other similar laws now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other
proceeding under any applicable bankruptcy, insolvency, reorganization,
debt arrangement, dissolution or other similar law now or hereafter in
effect, or shall consent to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) for, such Person or for any substantial part of
its property, or shall make any general assignment for the benefit of
creditors, or shall fail to, or admit in writing its inability to, pay
its debts generally as they become due, or, if a corporation or similar
entity, its board of directors shall vote to implement any of the
foregoing.
"Excluded SSM" means a self-service check cashing machine owned or
leased by ACE listed on Schedule III.
"Event of Default" has the meaning set forth in Section 9.01.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Face Amount" means in relation to any Commercial Paper Note (a) if
issued on a discount basis, the face amount stated therein and (b) if issued on
an interest-bearing basis, the principal amount stated therein plus the amount
of all interest scheduled to accrue thereon through its stated maturity date.
"Facility Amount" has the meaning set forth in Section 1.01.
Appendix A-9
"Facility Fee" has the meaning set forth in the Fee Letter, and
comprises the Program Fee and the Non-Use Fee.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any successor thereto or to the functions thereof.
"Fee Letter" means the letter agreement, dated December 18, 2002, among
the Borrower, ACE, the Lender and the Administrative Agent regarding interest
rates applicable to the Facility and regarding certain fees, including the
Annual Commitment Fee, the Increase Fee, the Prepayment Fee, the Facility Fee,
the Program Fee and the Non-Use Fee, as such letter agreement may from time to
time be amended, supplemented or otherwise modified from time to time with the
consent of all of the parties thereto.
"Final Payout Date" means the date following the Termination Date on
which the principal and interest of all Loans have been paid in full and all
other amounts payable by Borrower and Check-Xxxxxx under the Transaction
Documents shall have been paid in full.
"Fitch" means Fitch, Inc., or any successor thereto.
"GAAP" means generally accepted accounting principles applied on a
consistent basis.
"Governmental Authority" means any federal, state, county, municipal or
other governmental or regulatory authority, agency, board, body, commission,
instrumentality, court or any political subdivision thereof or any accounting
board or authority (whether or not part of a government) which is responsible
for the establishment or interpretation of material or international accounting
principles, in each case whether foreign or domestic.
"H&R" means H&R Block Tax Services, Inc., a Missouri corporation.
"Household" means Household International, Inc.
"Household Tax Masters" means Household Tax Masters, Inc., a Delaware
corporation.
"Increase Fee" has the meaning set forth in the Fee Letter.
"Indemnified Amounts" has the meaning set forth in Section 12.01.
"Indemnified Party" has the meaning set forth in Section 12.01.
"Insurance Schedule" means the schedule attached hereto as Schedule IV.
"Intercreditor Agreement" means the intercreditor agreement between the
Collateral Agent, the Administrative Agent and Texas Capital Bank, National
Association, substantially in the form of Exhibit 5.01(x) hereto.
"Interest Period" means, for any period during the Usage Period, the
interest period determined in accordance with Section 1.02(c).
Appendix A-10
"Interest Rate" means, with respect to any Loan and any Interest Period
therefor, (a) if such Loan is funded by the Lender during such Interest Period
through the issuance of Commercial Paper Notes, the CP Rate or (b) if such Loan
is funded by the Lender during such Interest Period other than through the
issuance of Commercial Paper Notes, the Eurodollar Rate, provided, however, that
following the occurrence of a Termination Event, the Interest Rate shall equal
the Eurodollar Rate plus 4.00% and following the occurrence of an Event of
Default, the Interest Rate shall equal the Base Rate plus 2.00%.
"IRS" means the United States Internal Revenue Service.
"Lender" has the meaning set forth in the preamble.
"Licensing Inquiry" means any inquiry, notice or other communication,
whether written, verbal, or in electronic form, from any Governmental Authority
relating to any licensing requirements which may be applicable to the Borrower
or the Check-Xxxxxx in connection with the transactions contemplated by this
Agreement or any other Transaction Document.
"Lien" means any interest in property securing an obligation owed to,
or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including, but not
limited to, the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt for a lease, consignment or bailment
for security purposes.
"Liquidity Agent" means DZ Bank, as agent for the Liquidity Providers
under the Liquidity Agreement, or any successor in such capacity.
"Liquidity Agreement" means the Liquidity Purchase Agreement, dated as
of December 31, 2002, among the Lender, the Liquidity Agent and the Liquidity
Providers, as amended, supplemented or otherwise modified from time to time.
"Liquidity Facility" means the arrangements established pursuant to the
Liquidity Agreement to facilitate the issuance of Commercial Paper Notes.
"Liquidity Providers" means the liquidity institutions from time to
time that are parties to the Liquidity Agreement.
"Loan" has the meaning set forth in Section 1.01.
"Majority Liquidity Providers" has the meaning set forth in Section
1.02 of the Liquidity Agreement.
"Material Adverse Effect" with respect to any event or circumstance, a
material adverse effect on:
(i) the business, assets, financial condition or operations of
Borrower, ACE or the Check-Xxxxxx;
Appendix A-11
(ii) the ability of the Check-Xxxxxx or Borrower to perform in
any material respect its obligations under any Transaction Document;
(iii) the validity, enforceability or collectibility of any
Transaction Document or any Asset; or
(iv) the status, existence, perfection, priority or
enforceability of the Collateral Agent's interest in the Assets or
Borrower's ownership interest in the Assets.
"Maturity Date" means April 30, 2008.
"Maximum Advance Percentage" means 99%.
"Maximum Facility Amount" has the meaning set forth in Section 1.01.
"Monthly Period" means each calendar month.
"Moody's" means Xxxxx'x Investor Services, Inc., or any successor
thereto.
"Net Balance" means, at any time during the Usage Period, the sum of
(x) Eligible Pool Balance at such time and (y) all amounts on deposit in the
Trust Collection Account (net of Accrued Facility Costs) at such time.
"Non-Use Fee" shall be the amount payable by the Borrower during the
Usage Period as set forth in the Fee Letter.
"Note" has the meaning set forth in Section 2.01.
"Optional Redemption Date" means, with respect to any Usage Period, the
Business Day designated as such by the Borrower upon at least 5 Business Days'
prior written notice to the Administrative Agent; provided that the conditions
set forth in Section 2.06 shall be satisfied.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company, government or any agency or political
subdivision thereof or any other entity.
"Pledged Collateral" has the meaning set forth in Section 1.03.
"Prepayment Fee" has the meaning set forth in Section 2.01.
"Program Fee" shall be the amount payable by the Borrower during the
Usage Period as set forth in the Fee Letter.
"Program Deficiency" means, on any date, the amount (if any) by which
the Facility Amount exceeds the lesser of (i) Capital Limit or (ii) the Maximum
Facility Amount.
"RAL" means a tax refund anticipation loan made to or a refund
anticipation check issued to a Tax Filer.
Appendix A-12
"RAL Agreement" means, collectively, the application and related loan
agreement between an Approved Bank and a customer of an Approved Tax Provider in
one of the forms attached as Annex V hereto which provides, inter alia, for (i)
such Approved Bank to make a loan to such customer by issuance of a Check in an
amount not to exceed the amount of such customer's anticipated income tax refund
(net of applicable fees payable to such Approved Bank) and (ii) such customer to
direct the IRS to deposit the related Refund to the Tax Filer Account.
"Rating Agency" means Fitch and Moody's.
"Recoveries" means moneys collected by the Check-Xxxxxx or any Approved
Courier following instruction by Collateral Agent to return all money lent to
Borrower hereunder in possession of such Approved Courier or at any SSM serviced
by such Approved Courier.
"Refund" means a Tax Filer's United States federal income tax refund.
"Regulation D" means Regulation D of the Federal Reserve Board, or any
other regulation of the Federal Reserve Board that prescribes reserve
requirements applicable to nonpersonal time deposits or "Eurocurrency
Liabilities" as presently defined in Regulation D, as in effect from time to
time.
"Regulatory Change" means, relative to any Affected Party
(a) any change in (or the adoption, implementation, change in
phase-in or commencement of effectiveness of) any
(i) United States federal or state law or foreign law
applicable to such Affected Party;
(ii) regulation, interpretation, directive,
requirement or request (whether or not having the force of
law) applicable to such Affected Party of (A) any court,
government authority charged with the interpretation or
administration of any law referred to in clause (a)(i) or of
(B) any fiscal, monetary or other authority having
jurisdiction over such Affected Party; or
(iii) generally accepted accounting principles or
regulatory accounting principles applicable to such Affected
Party and affecting the application to such Affected Party of
any law, regulation, interpretation, directive, requirement or
request referred to in clause (a)(i) or (a)(ii) above;
(iv) any requirement of any Rating Agency applicable
to such Affected Party; or
(b) any change in the application to such Affected Party of
any existing law, regulation, interpretation, directive, requirement,
request or accounting principles referred to in clause (a)(i), (a)(ii)
or (a)(iii) above.
Appendix A-13
"Related Rights" means (i) all of Borrower's right, title and interest
in and to all insurance claims related to the Cash or Checks and (ii) all of
Borrower's right, title and interest in and to all Tax Filer Accounts, Refunds
and RAL Agreements.
"Reporting Date" shall have the meaning set forth in Section 8.03(ii).
"Required Reserve Level" means, for each Usage Period, the sum of (a)
$1,000,000 and (b) the excess of (I) all Check Cashing Fees during such Usage
Period over (II) the amount of all fees payable pursuant to Section 3.03;
provided, however, that on the date during each Usage Period on which the amount
in (b) above equals or exceeds 2.75% of the Maximum Facility Amount, the
$1,000,000 initial deposit shall be released by the Collateral Agent to the
Borrower and, thereafter, the amount in (a) above shall be zero ($0).
"Reserve Account" means securities account number 00000000 established
at the Collateral Agent in the State of Minnesota, in the name of the Borrower
for the benefit of the Secured Parties and subject to the sole dominion and
control of the Collateral Agent pursuant to a control agreement in form and
substance acceptable to the Administrative Agent, which account has been
designated as the Reserve Account, and any other account designated as such by
the Collateral Agent, together with any securities account related thereto.
"Responsible Officer" when used with respect to the Collateral Agent,
means any Vice President, any Assistant Vice President, any Assistant Secretary,
any Trust Officer or any other officer or employee of the Collateral Agent
customarily performing functions similar to those performed by any of the above
designated officers and also to whom, with respect to a particular matter, such
matter is referred because of such officer's or employee's knowledge of and
familiarity with the particular subject and in each case who shall have direct
responsibility for the administration of this Agreement.
"Secured Parties" means the Lender, the Administrative Agent, the
Liquidity Agent, the Collateral Agent, the Liquidity Providers and the other
Indemnified Parties.
"Servicing Fee" has the meaning set forth in Section 8.06(a).
"Servicing Report" has the meaning set forth in Section 8.03.
"Settlement Date" means the 10th day of each calendar month during the
Usage Period, or of any such day if not a Business Day, the next Business Day.
"Settlement Period" with respect to any Loan,
(a) the period from the date of the first Borrowing hereunder
to but excluding the first Settlement Date thereafter; and
(b) thereafter, each period from and including the preceding
Settlement Date to but excluding the next Settlement Date.
"Source SSM" means the self-service check cashing machines leased or
owned by ACE and manufactured by Source Technologies, Inc.
Appendix A-14
"SSM" means a self-service check cashing machine owned or leased by ACE
(including both Diebold SSMs and Source SSMs) used for the disbursement of Cash
in connection with the cashing of Checks which (i) is located in the United
States of America; and (ii) is listed on Schedule II hereto, as such schedule
may be amended, supplemented and modified from time to time with the consent of
the Administrative Agent, which consent may not be unreasonably withheld or
delayed.
"SSM Lender" means any Person party to an agreement with ACE pursuant
to which any SSMs are financed or leased.
"Subsidiary" means, with respect to any Person, a corporation of which
such Person and/or its other Subsidiaries own, directly or indirectly, such
number of outstanding shares as have more than 50% of the ordinary voting power
for the election of directors.
"Supplemental Cash Inventory Provision Fee" means, for any Usage
Period, an amount equal to 0.20% of the Maximum Facility Amount on the first day
of such Usage Period.
"Tax Filer" means a customer of an Approved Tax Provider who has
entered into an RAL Agreement.
"Tax Filer Account" means a demand deposit account at an Approved Bank
established by a Tax Filer in the name of the Tax Filer pursuant to an RAL
Agreement into which the IRS has been directed to deposit the related Refund.
"Termination Date" means the earlier of:
(a) the date that the Termination Date is declared under
Section 9.02(a) or occurs automatically pursuant to
Section 9.02(b); and
(b) the date of termination in connection with a prepayment in
full of all Loans and the payment of the applicable Prepayment Fee at
the election of the Borrower pursuant to Section 2.01;
(c) the date of termination pursuant to Section 11.01; and
(d) the Maturity Date.
"Termination Event" means each of the following events:
(a) An Event of Default occurs and is continuing;
(b) Household's short-term ratings shall be below "P-2" by
Moody's , "F-2" by Fitch or "A-2" by Standard & Poor's at any time;
(c) Household's long-term ratings shall be below "Baa2" by
Moodys, "BBB" by Fitch or "BBB" by Standard & Poor's ;
Appendix A-15
(d) The occurrence of any Regulatory Change that requires the
Lender to cease issuing Commercial Paper Notes or lending funds
hereunder, or that requires any Liquidity Provider to terminate its
commitment under the Liquidity Agreement;
(e) Any approved Tax Provider's long-term rating, as
determined by Moody's, shall be below "Baa3";
(f) The occurrence of the Maturity Date;
(g) An Event of Bankruptcy shall have occurred and remain
continuing with respect to any Approved Tax Provider;
(h) ITLA Capital Corporation shall fail to maintain total
shareholders' equity (calculated in accordance with GAAP, adjusted for
any treasury stock transactions after September 30, 2002) in excess of
$150,000,000 at any time or the average net income of ITLA Capital
Corporation (as determined in accordance with GAAP) shall fail to be
greater than $0 for any three consecutive fiscal quarters ending after
September 30, 2002;
(i) Household International, Inc. or its Affiliates shall at
any time hold less than a 99% participation interest in any RAL the
Approved Bank with respect to which is Imperial Capital Bank;
(j) The failure of Imperial Capital Bank to be categorized as
"Well Capitalized" as a state bank member of the FDIC at any time;
(k) Imperial Capital Bank shall fail to maintain a rating of
at least "Green **" from Veribanc, Inc.; and
(l) Imperial Capital Bank shall receive notice of any
potential enforcement action or imposition of civil money damages from,
or become subject to any regulatory order or enforcement action by, any
of its applicable governmental regulators.
"Transaction Accounts" has the meaning set forth in Section 3.01(a).
"Transaction Documents" means this Agreement, the Approved Courier
Agreements, the Approved Vault Bank Agreements, the Fee Letter, the Liquidity
Agreement, the Note, the Company Note, the Account Control Agreement, the
Intercreditor Agreement, and the other documents to be executed and delivered in
connection herewith, including, without limitation, all documentation relating
to the SSMs and the transportation of the Cash and powers of attorney from ACE
and the Borrower in favor of the Collateral Agent.
"Trust Accounts" has the meaning set forth in Section 3.01(a).
"Trust Collection Account" means securities account number 00000000
established at the Collateral Agent in the State of Minnesota, in the name of
the Borrower for the benefit of the Secured Parties and subject to the sole
dominion and control of the Collateral Agent pursuant to a control agreement in
form and substance acceptable to the Administrative Agent, which account has
been designated as the Trust Collection Account, and any other account
designated
Appendix A-16
as such by the Collateral Agent, together with any securities account related
thereto that may be established at the Collateral Agent.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the applicable jurisdiction or jurisdictions.
"Unmatured Event of Default" means any event which, with the giving of
notice or lapse of time, or both, would become an Event of Default.
"Usage Period" means the period from January 2nd (or the preceding
Business Day if January 2nd is not a Business Day) through the Usage Period
Maturity Date of each calendar year, commencing in January 2003; provided,
however, that if any Approved Tax Provider's long-term rating, as determined by
Moody's, shall be below BBB at any time, then (i) if a Usage Period is currently
in effect, the commitment of the Lender shall terminate on the Usage Period
Maturity Date for such Usage Period and no further Usage Period shall commence
and (ii) if a Usage Period is not currently in effect, the commitment of the
Lender shall terminate immediately and no subsequent Usage Period shall
commence.
"Usage Period Maturity Date" means, with respect to each Usage Period,
the earlier of (i) April 30th (or the next Business Day if April 30th is not a
Business Day) of the calendar year in which such Usage Period commenced or (ii)
the Optional Redemption Date with respect to such Usage Period.
"Vault Collection Account" has the meaning set forth in Section
3.01(a).
B. Other Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles.
All terms used in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such Article 9.
C. Computation of Time Periods. Unless otherwise stated in this
Agreement, in the computation of a period of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding."
Appendix A-17
SCHEDULE II
ACE CASH EXPRESS, INC.
SSM LOCATIONS FY03
SSM SCHEDULE --- DZ BANK XXXXXXXXX
XXXXXX # X&X XXXXX XXXXXX XXXXXXX XXXX XXXXX OFFICE ZIP
-------- ------------------------ ---- ----- ----------
6630 0000 XXXXXXXX XXX. XXXX XXXX XX 00000
0000 XXXX XXXXXX XX
0000 XXXX XXXXXX XXXXXXXX XXXXXX XXXXXXX XX 00000
6733 0000 XXXXXXXX XXX. XXXXXXXX XX 00000
6614 000 XXXXXXXXXXX XXXX. XXXX XXXXXXX XX 00000
6537 00 XXXX XXXX XX XXX XXXXXXX XX 00000
6538 000 Xxxxxxxxxx Xxx., #X Xxxxxxxx XX 00000
6541 0000 XXXXXXX XXXX Xxxxxxxxxx XX 00000
6542 0000 XXXXXXXXX XXX. XX Xxxxxxxxxx XX 00000
6577 000 XXXX 0XX XXXXXX Xxxxx XX 00000
6578 0000 XX 0XX XXX. Xxxxx XX 00000
6643 0000 XXXXX XXXX XXXXXXXXXXX XX 00000
6644 0000 XXXX XXXXX XXXX XXXX XXXXX XX 00000
6645 00 XXXX XXXXXXXXX XX. XXXXXX XX 00000
6647 0000 X. XXXX XXXXXX XXXXXXXXXXXX XX 00000
6648 0000-0 000XX XXXXXX XXXXXXXXXXXX XX 00000
6649 0000-0 XXXXXXXX XXX X. XXXXXXXXXXXX XX 00000
6751 0000 XX 00 XXXX. XXXXXXXXXXX XX 00000
6785 00000 X. XXXXX XXXXXXX XXXXXX XXXXX XX 00000
6786 0000 XXXX XXXXX XXXXX XXXX. XXXX XXXX XXXXX XX 00000
6573 0000 XXXXXXXX XX Xxxxxxx XX 00000
6574 0000 Xxxxx X. Xxxxxxxxx Xxxx. XX Xxxxxxx XX 00000
6575 0000 XXX XXXXXXXX XXX. Xxxxxxx XX 00000
6576 0000 X. XXXXXXX XXXXX Xxxxxxxx XX 00000
6650 000 X. XXXXXXXXX XXXXXX XXXXXXXX XX 00000
6660 0000 XXXXXXXXXX XX. XXXXX XX. XXXXXXXX XX 00000
6661 0000 XXXXXXXXXXXX XXXXXXX XXXXXXX XX 00000
6662 0000-0 XXXXXX XXXXXX XXXX, XX XXXXXXX XX 00000
6663 000-000 XXXXXXXX XXX XXXXXXX XX 00000
6664 0000 XXXXXXXX XXXXX XXXXX XXXXXXXX XX 00000
6665 0000 XXXXXXXX XXXXX XXXXXXX XX 00000
6666 0000 XXX 000 XXXXX X-0 XXXXXXX XX 00000
6667 0000 XXX XXXXXXXX XXXXXXX XXXXXXX XXXX XX 00000
6752 0000 XXXXXXXX XXXXX XXXXXXXX XX 00000
6753 0000 XXXXXXXX XXXXX XXXXXXXXXXXX XX 00000
6754 0000 XXXXXXXXX XX. XXXXXX XXXX XX 00000
6756 0000 XXXXXX XXXXXX XX. XXXXXXX XX 00000
6757 0000-X XXXXXXXX XXXXX XXXXXXX XX 00000
6608 000 XXXXXX XXXXXX Xxxxx Xxxx XX 00000
6594 0000 XXXXXXXXXXXX XXX. XXXXXXXXXXXX XX 00000
6668 0000 X. XXXXXXXXXX XX. XXXXXXXXXXXX XX 00000
6669 0000 XXXXXX XXX. XXXXXXXXXX XX 00000
TOWN & COUNTRY SHOPPING CENTER,
6679 000 X. XXXXXXXX XXX. XXXXXXXXX XX 00000
6759 0000 XXXX XX. XXXXXXXXXXXX XX 00000
6790 0000 XXXXXXXX XXXXXXXXXXXX XX 00000
6560 0000 X XXXXXXXX XXXXXXXXXX XX 00000
6585 000 XXXX XXXXXXXX XXXXXXXXXX XX 00000
6586 0000 XXXXXXXX XXXXXX Xxxxxxx XX 00000
6671 000 XXXXXXX XXX XXXXXXXXX XX 00000
6761 0000 XXXXX XXX XXXXXXXX XX 00000
6613 0000 XX XXXXXX XX. XXX XXXXXXX XX 00000
6672 000 XXXXXXXXX XXXXX XXXXXXXXXX XX 00000
ACE CASH EXPRESS, INC.
SSM LOCATIONS FY03
SSM SCHEDULE --- DZ BANK XXXXXXXXX
XXXXXX # X&X XXXXX XXXXXX XXXXXXX XXXX XXXXX OFFICE ZIP
-------- ------------------------ ---- ----- ----------
6673 0000 XXXXX XXXX XXXXX XXXXX XX 00000
6674 000 XXXX XXXXXX XXXXX XX 00000
6675 0000 X. XXXX XXXXXX XXXXXXX XX 00000
6676 0000 XXXXX XX. XXX XXXXXXX XX 00000
6677 0000 XXXXXXX XXX., XXXXX 0 XXX XXXXXXX XX 00000
6678 0000 XXXXXX XXXXXX XXX XXXXXXX XX 00000
6680 000 XXXXX XXXXXXXXX XXXX XXXXXXXXX XX 00000
6595 00000 XXXXXXXXXXXX XXX., XXX. 000 XXXXXXXXXX XX 00000
6596 0000 X 0 XXXX XX XXXXXX XX 00000
6597 SOUTHLD CTR. 00000 XXXXXX XX. XXXXXX XX 00000
6598 00000 XXXXXXXX XXXXXXXX XXXX XX 00000
6599 00000 XXXXX XXXXX XXXXXXX XX 00000
6600 00000 XXXXXXX XXXXXXX XX 00000
6601 00000 XXXXXXX XXXXXXX XX 00000
6602 00000 XXXXXX XXXXXX XXXXXXXXX XX 00000
6603 00000 X. 0 XXXX XXXXXXX XX 00000
6604 00000 XXXXXXX XXXXXX XXXXX XX 00000
6605 00000 XXX XXXX XXXXXXX XX 00000
6606 00000 XXXXXXXX XXXXXXX XX 00000
6607 0000 XXXX XXXX XXXXX XX 00000
6681 0000 XXXXXXXXX XXXXXX XXXXXX XX 00000
6683 0000 X. XXXXX XXXX XXXX XXXXXXX XX 00000
6684 0000 XXXX XXXXXX XXXXXXX XXXX XX 00000
6686 0000 X XXXXXXXX XXXXXXX XX 00000
6764 00000 X. XXXXXXXXX XXXXXXX XX 00000
6611 0000 XXXXXXXX XX XXXXX XX 00000
6687 00 X. XXXXXXXXXX XXXXXXXX XX 00000
6765 0000 XXXXXXX XXXXXXXX XX 00000
6610 0000-0000 XXXXXX XX XXXXX XX 00000
6789 0000 XXXXX XXXXX XX. XXXXXXX XX 00000
6559 000 Xxxxxxxx Xx XXXXXX XX 00000
6570 0000X XXXX XXXX XXXXXX XX 00000
6571 0000 XXXXXX XXXX XXXXXXXXXXXX XX 00000
6572 0000-X XXXXXX XXXXXX XXXXXXXXX XX 00000
6682 0000 XXXXXX XXXXXX XX. XXXXXXXXXX XX 00000
6691 0000 XXXXX XXXXX XXXX. XXXXXX XX 00000
6692 000 XXXXXXX XXXXX XXXXXX XXXX XX 00000
6693 0000 XXXX XXXXX XXXXXXXXXXXX XX 00000
6694 0000 XXXXXXX XXXX. XXXXXXX XX 00000
6695 0000 XXXXXXX XXXX. XXXXXXX XX 00000
6696 0000 XXXXXXX XXXXXX, XXXXX X XXXXXXXXXXXX XX 00000
6697 0000 X XXXXXXXX XXXXX XXXX #00 XXXXXXX XX 00000
6698 000 X. XXXXX XXXX XXXXXX XX 00000
6768 0000 XXXXXX XXXXXX XXX. 000 XXXXXXXXXXXX XX 00000
6587 0000 X XXXXXXXXXX XXXXXX Xxxxxxxx XX 00000
6588 0000 XXXXX XX Xxxxxxxx XX 00000
0000 XXXXXXX XX, #00
0000 XXXXXXX XXXX XXXXXXXX XXXXXX Xxxxxx XX 00000
6590 00000 XXXXXX XXX Xxxxxxxxx XX 00000
6591 00000 XXXXXX XXXXXX X. Xxxxxxxxx XX 00000
6592 0000 XXXXXXXX XXX Xxxxxxxxx XX 00000
6593 0000 X. XXXXXXXXX #00 Xxxxx XX 00000
ACE CASH EXPRESS, INC.
SSM LOCATIONS FY03
SSM SCHEDULE --- DZ BANK XXXXXXXXX
XXXXXX # X&X XXXXX XXXXXX XXXXXXX XXXX XXXXX OFFICE ZIP
-------- ------------------------ ---- ----- ----------
6699 0000 XXXXX XXXX XX. XXXXXXXX XX 00000
6700 0000 00XX XX X.X. XXXXXX XX 00000
6701 0000-X X. XXXXXXXXXX XXXXXX XX 00000
6702 000 X XXXXX XX XXXXXXXX XX 00000
6703 000 X. XXXXX XXXXX X XXXX XX 00000
6704 0000 XXXXXXX XXX XXXX XX 00000
6705 0000 XXXXXXX XXX. XXXXXXXXXXX XX 00000
6706 0000 XXXXXX XXXX XXXXXXXXX XX 00000
6708 00000 XXXXXXX XXXX. XXXXXX XXXXXXX XX 00000
6710 00000 XXXXXX XXX. X. XXXXXXXXX XX 00000
6711 0000 XXXXXXX XXX. XXXXXXXXXX XX 00000
6712 0000 XXXXXXXXX XXX XXXXXXXX XX 00000
6714 0000 X. XXXXXXXX XXXXX XXXXXXXXX XX 00000
6715 00000 XXXX XXXXX XXXX XXXXXX XX 00000
6716 000 X. XXXXXX XXXXXX XXXXXX XX 00000
6769 0000 XXXXX XXX. XXXXXXXX XX 00000
6770 000 XXXXXX XXXXXX XXXXXXXXXX XX 00000
6771 0000 XXXXXX XXXXXX XXXXXXXXXX XX 00000
6772 0000 XXXXXXXXXX XXXX XXXXXXX XX 00000
6562 000 X 0XX XX Xxxxxxxxx XX 00000
6774 0000 XXXXX 0XX XXXXXX XXXXXXXXXX XX 00000
6787 0000 XXXXXXXXX XXXX XXXXXXXXX XX 00000
6579 0000 XXXXXXXX XXXX Xxxxxxxxx XX 00000
6580 0000 XXXXXXXXX XXXX XXXXXXXXXXX XX 00000
6581 000 X. XXXXXXXXX Xxxxxxx XX 00000
6582 0000 X. XXXXXX Xxxxxxx XX 00000
6583 0000 XXXXX XXXXX Xxxxxxx XX 00000
6584 0000 XXXXXXX Xxxxxxx XX 00000
6622 0000 XX. XXXXXXXX XXXX. XXXXXXXXXXX XX 00000
6642 000 XX XXXXX XX. XXXXXXXXXXXX XX 00000
6717 000 XXXXX XXXXXX XXXXXXXXX XX 00000
6718 0000 XXXXXXXXX XXXX XXXXXXXXX XX 00000
6719 0000 XXXXXXXXXXX XXXX XXXXXXXXX XX 00000
6720 0000 XXXXXXX 00 XXXXXXXXXXX XX 00000
6721 0000 X XXXXXXXX, XXXXX 000 XXXXXXXXX XX 00000
6722 0000 XXXXXXXXX XXX. XXXXXXXXX XX 00000
6723 0000-X XXXXXXX XXX XXXXXXXXX XX 00000
6724 0000 X. XXXXXXXXX XXXXX XXXXXXXXXXX XX 00000
6725 0000 XXXXXX XXXX XXX. XXXXXXX XX 00000
6750 000 X. XXXX XX. XXXXX XX 00000
6775 000 X XXXXXX XXXXXX XXXXXX XX 00000
6776 000 0XX XXXXXX XXXXX XXXXXXXXX XX 00000
6777 000 XXXXXXXXXX XXXXXX XXXXX XX 00000
6778 000 XXXXXXXX XXXX XXXXXXXXXX XX 00000
6779 000 X. XXXXXXXX XXXXXXXXXX XX 00000
6784 0000 XXXXXXXXX XXXX XXXXXXX XX 00000
6801 0000-X XX XXXXXXXX XXXX XXXXXXXXXXXX XX 00000
6731 000 XXXXXXXX XXXX XXXXX XX 00000
6732 0000 XXXXXXXX XXX. #00 X-X XXXXXXXXX XX 00000
6791 000 XXXX XXXXXX XXXXX XX. XXXXXXX XX 00000
6802 0000 XXXXXXXXXXXXXX XXXX XXXXXXXX XX 00000
6557 0000 X XXXX XX XXX XXXXXXXXX XX 00000
ACE CASH EXPRESS, INC.
SSM LOCATIONS FY03
SSM SCHEDULE --- DZ BANK XXXXXXXXX
XXXXXX # X&X XXXXX XXXXXX XXXXXXX XXXX XXXXX OFFICE ZIP
-------- ------------------------ ---- ----- ----------
6558 0000 XXXXX 00XX XX. XXXXXXXXX XX 00000
6609 0000 X. 00XX XX XXXXXXXXX XX 00000
SCHEDULE III
ACE CASH EXPRESS, INC.
SSM LOCATIONS FY03
EXCLUDED SSMS ---TEXAS CAPITAL BANK XXXXXXXXX
XXXXXX # X&X XXXXX XXXXXX XXXXXXX XXXX XXXXX OFFICE ZIP
-------- ------------------------ ---- ----- ----------
6615 0000 XXXX XXXXXXXX XXXXXXX XX 00000
6616 0000 X Xxxxxx Xxxxxx Xx XXXXXXX XX 00000
6617 0000 XX XXXXXXX XXXXXXX XX 00000
6632 000 XXXX XXXXXXXX XXXX XXXXXX XX 00000
6633 0000 X. XXXXXX XXXXXX XX. XXXXXXX XX 00000
6734 0000 X XXXXXXX XXX XXXXXXXX XX 00000
6735 000 XXXX 0XX XXXXXX XXXX XXXXXX XX 00000
6736 0000 X XXXXXXX XXXX XX. XXXXXXXX XX 00000
6511 0000 Xxxxxxxx Xx Xxxxxxxxxxx XX 00000
6512 0000 Xxxxxx Xxxx Xxxxxxxxxxx XX 00000
6513 000 XXXXXXX XXX. Xxxxxxxxxxx XX 00000
6514 0000 XXXXXXXXX XXXX XXXXXXXXXX XX 00000
6515 0000 Xxxxxxxxxx Xxxx XXXXXXXXXX XX 00000
6516 0000 Xxxxxx Xx XXXXXXXXXX XX 00000
6518 0000 Xxxx Xxx XXXXX XXXXXXXXX XX 00000
6521 00 X Xxxx Xx Xxxxxx XX 00000
6526 00000 X. 00XX XX. XXX XXXXXXX XX 00000
6528 000 X. Xxxxxxxx Xxx. XXX XXXXXXXXXX XX 00000
6529 0000 Xxxxxx Xxx # X Xxxxxxx XX 00000
6530 00000 XXXXXXXXX XXXX XXXXXXXXX XX 00000
6531 0000 XXXXXXXX XXX Xxxx Xxxxx XX 00000
6533 000 X XXXXX XXX XXXXXX XX 00000
6534 0000 Xxxxxxx Xx Xxxx #0, Xxx. #0 XXXXXXX XX 00000
6535 000 X XXXXXX XXXXX XXXX XXXXXXX XX 00000
6548 0000 Xx Xxxxxx Xxx Xxxxxxxxx XX 00000
6561 0000 XX XXXXX XXXX. Xxx Xxxxx XX 00000
6618 0000 X. XXXXXXXX XXXXXX XXX XXXXXXX XX 00000
6619 0000 X. XXXX XXXX XXX XXXXXXX XX 00000
6620 000 X XXXXXXXXXX XXXX XXXXXXXXX XX 00000
6621 0000 XXXX XXXXX XXXX Xxxx Xxxxx XX 00000
6623 0000 X XXXXX XXXXX XX XXXXX XX 00000
6624 0000 XXXX XXX XXXXXXXX XXXXX XX 00000
6625 0000 X. XXXXX XXXXXXX Xxxxxxxxx XX 00000
6626 0000 X XXXXXX XXX Xxx Xxxxx XX 00000
6627 0000 X XXXXXX XXXXXX Xxxxxx XX 00000
6628 000 X. XXXXXXX XXX, XXXXX X XXXXXXXX XX 00000
6629 00000 XXXXXX XXXX. XXXXXX XXXXXXX XX 00000
6634 0000 XXXXX XX XXXXXXXXXXX XX 00000
6635 0000-X XXXXX XXXXX XXXXXXXXXXX XX 00000
6636 0000 X. XXXXXX XX. XXXXXXXX XX 00000
6637 0000 X XXXXXXX XXXXX XXXX XXXXXXX XX 00000
6639 00000 00XX XXXXXX XXXX XXXXXXXXX XX 00000
6737 0000 X. XXXXXXXXXX #000 XXXXXX XX 00000
6738 0000 XXXX XXX. XXXXXXXXXX XX 00000
6739 0000 XXXX XXXX, #X XXX XXXX XX 00000
6741 0000 X. XXXXXXXX XXXX #X XXXX XX XXXXXXXX XX 00000
CENTER # H&R BLOCK OFFICE ADDRESS CITY STATE OFFICE ZIP
-------- ------------------------ ---- ----- ----------
6742 0000 X. XXXXXX XXXX. XXX XXXXXXX XX 00000
6743 000/000 XXXXXXXXXX XXXX XXXXXX XXXXXX XX 00000
6745 0000 XXXXXXXX XXXXX. #000 XXXXXX XXXXXXXXX XX 00000
6746 0000 X. XXXX, #000 XXXXXX XX 00000
6803 00000 XXXXXXX XX XXX XXXX XX 00000
6804 0000 XXXXXXXXX XXX XXXXXXX XX 00000
6805 000 XXXXXXXXX XXXX, XXX. #000 XXXX XXXXXXXXXX XX 00000
6806 0000 XXXXXX XXXX, XXX. 000 XXXXXXX XX 00000
6640 2919 & 0000 X. 00XX XXX. XXXXXX XX 00000
6748 0000 XXXXX XXXXXXX XXXX. XXXXXXXX XXXXXXX XX 00000
6670 0000 XXXXX XXXXXX, XXXXX 00 XXXXXXX XX 00000
6760 0000-00 XXXXX XXX XXXXXX XXXX XX 00000
6612 0000 X 00 XX XXXXX XX 00000
6688 0000 XXXXXXXXXX XXX. XXXXX XXXXX XXXX XX 00000
6689 0000 X XXXXXX XXXXXXX XX 00000
6690 0000 XXXXX XXXX XXXXXX XX 00000
6766 0000 X. XXXXX XXX. XXXX XX 00000
6767 0000 XXXX XXXXXXX XX. XXXXXX XXXX XX 00000
6788 0000 X. XXXXXXXX XXXX./XXXX. X XXX XXXXX XX 00000
6792 0000 XXXXX XXXXXX XX. X. XXX XXXXX XX 00000
6507 0000 XXXXX XXXXXXXXX, #000X XXXXXX XX 00000
6549 0000 X Xxxxxxxxx XX Xxxxx XX 00000
6553 0000 Xxxxxx X. Xxxx Xxxx. XXXXXX XX 00000
6554 0000 X. XXXXXXX #000 XXXXXX XX 00000
6555 000 XXXXXXXXX XXXXXXX XXXXXX XX 00000
6726 0000 XXXX XXXXX XXXX XXXX XXXXX XX 00000
6727 0000-X XXXXXX XXXXXX XXXX XXXXX XX 00000
6728 0000-X XXXX XXXXX XXXX. XXXX XXXXX XX 00000
6729 0000 X. XXXXXXX XXX. #000 XXXXXX XX 00000
6730 000 X XXXXX XXXX XXXXX XX 00000
6780 000 X XXXX XXXXXXXX XX 00000
6781 0000 X. XXXX 000 #000 XXXXXXXX XX 00000
6782 0000 XXXXXXX XX XXXX XX 00000
6783 0000 X 0XX XXXXXX XXXXXX XX 00000
6793 0000 XXXXXXXXX XX. XXXXXX XX 00000
6794 000 X. XXXXXXXX, XXX. 000 XXXXXX XX 00000
6795 000X XXXXXXX 00 XXX XXXXXX XX 00000
6796 0000 X. XXXXXX XX. XXXXXX XX 00000
6797 0000 X. XXXXXXXXX XXXXXXX XX 00000
6798 0000 XXX XXXXXXXX XXXXXX XX 00000
6800 0000 X. XXXXXXX XX. XXXXXX XX 00000
SCHEDULE IV
INSURANCE REQUIREMENTS
1. Required Theft/Loss Insurance Protection
Required Theft/Loss*
SSM Type Insurance Protection
-------- --------------------
Diebold SSMs $300,000 per SSM
Source SSMs $300,000 per SSM
* Minimum acceptable Theft/Loss coverage
2. Required Errors and Omissions Insurance
Minimum Coverage: $2,000,000
3. Required Fidelity Insurance
Minimum Coverage: $2,000,000
Schedule V
ACE CASH EXPRESS, INC.
SSM LOCATIONS FY03
DZ BANK LOCATIONS
CHECK
CENTER # H&R BLOCK OFFICE ADDRESS CITY STATE OFFICE ZIP FEE %
-------- ------------------------ ---- ----- ---------- -----
6630 0000 XXXXXXXX XXX. XXXX XXXX XX 00000 *%
6631 0000 XXXX XXXXXX XX XXXXXXX XX 00000 *%
6733 0000 XXXXXXXX XXX. XXXXXXXX XX 00000 *%
6614 000 XXXXXXXXXXX XXXX. XXXX XXXXXXX XX 00000 *%
6537 00 XXXX XXXX XX XXX XXXXXXX XX 00000 *%
6538 000 Xxxxxxxxxx Xxx., #X Xxxxxxxx XX 00000 *%
6541 0000 XXXXXXX XXXX Xxxxxxxxxx XX 00000 *%
6542 0000 XXXXXXXXX XXX. XX Xxxxxxxxxx XX 00000 *%
6577 000 XXXX 0XX XXXXXX Xxxxx XX 00000 *%
6578 0000 XX 0XX XXX. Xxxxx XX 00000 *%
6643 0000 XXXXX XXXX XXXXXXXXXXX XX 00000 *%
6644 0000 XXXX XXXXX XXXX XXXX XXXXX XX 00000 *%
6645 00 XXXX XXXXXXXXX XX. XXXXXX XX 00000 *%
6647 0000 X. XXXX XXXXXX XXXXXXXXXXXX XX 00000 *%
6648 0000-0 000XX XXXXXX XXXXXXXXXXXX XX 00000 *%
6649 0000-0 XXXXXXXX XXX X. XXXXXXXXXXXX XX 00000 *%
6751 0000 XX 00 XXXX. XXXXXXXXXXX XX 00000 *%
6785 00000 X. XXXXX XXXXXXX XXXXXX XXXXX XX 00000 *%
6786 0000 XXXX XXXXX XXXXX XXXX. XXXX XXXX XXXXX XX 00000 *%
6573 0000 XXXXXXXX XX Xxxxxxx XX 00000 *%
6574 0000 Xxxxx X. Xxxxxxxxx Xxxx. XX Xxxxxxx XX 00000 *%
6575 0000 XXX XXXXXXXX XXX. Xxxxxxx XX 00000 *%
6576 0000 X. XXXXXXX XXXXX Xxxxxxxx XX 00000 *%
6650 000 X. XXXXXXXXX XXXXXX XXXXXXXX XX 00000 *%
6660 0000 XXXXXXXXXX XX. XXXXX XX. XXXXXXXX XX 00000 *%
6661 0000 XXXXXXXXXXXX XXXXXXX XXXXXXX XX 00000 *%
6662 0000-0 XXXXXX XXXXXX XXXX, XX XXXXXXX XX 00000 *%
6663 000-000 XXXXXXXX XXX XXXXXXX XX 00000 *%
6664 0000 XXXXXXXX XXXXX XXXXX XXXXXXXX XX 00000 *%
6665 0000 XXXXXXXX XXXXX XXXXXXX XX 00000 *%
6666 0000 XXX 000 XXXXX X-0 XXXXXXX XX 00000 *%
6667 0000 XXX XXXXXXXX XXXXXXX XXXXXXX XXXX XX 00000 *%
6752 0000 XXXXXXXX XXXXX XXXXXXXX XX 00000 *%
6753 0000 XXXXXXXX XXXXX XXXXXXXXXXXX XX 00000 *%
6754 0000 XXXXXXXXX XX. XXXXXX XXXX XX 00000 *%
6756 0000 XXXXXX XXXXXX XX. XXXXXXX XX 00000 *%
6757 0000-X XXXXXXXX XXXXX XXXXXXX XX 00000 *%
6608 000 XXXXXX XXXXXX Xxxxx Xxxx XX 00000 *%
6594 0000 XXXXXXXXXXXX XXX. XXXXXXXXXXXX XX 00000 *%
6668 0000 X. XXXXXXXXXX XX. XXXXXXXXXXXX XX 00000 *%
6669 0000 XXXXXX XXX. XXXXXXXXXX XX 00000 *%
6679 000 X. XXXXXXXX XXX. XXXXXXXXX XX 00000 *%
6759 0000 XXXX XX. XXXXXXXXXXXX XX 00000 *%
6790 0000 XXXXXXXX XXXXXXXXXXXX XX 00000 *%
6560 0000 X XXXXXXXX XXXXXXXXXX XX 00000 *%
6585 000 XXXX XXXXXXXX XXXXXXXXXX XX 00000 *%
6586 0000 XXXXXXXX XXXXXX Xxxxxxx XX 00000 *%
6671 000 XXXXXXX XXX XXXXXXXXX XX 00000 *%
6761 0000 XXXXX XXX XXXXXXXX XX 00000 *%
6613 0000 XX XXXXXX XX. XXX XXXXXXX XX 00000 *%
6672 000 XXXXXXXXX XXXXX XXXXXXXXXX XX 00000 *%
6673 0000 XXXXX XXXX XXXXX XXXXX XX 00000 *%
6674 000 XXXX XXXXXX XXXXX XX 00000 *%
* Confidential treatment has been requested for certain portions of this
document pusuant to an application for confidential treatment sent to the SEC.
Such portions are omitted from this filing and filed separately with the SEC.
6675 0000 X. XXXX XXXXXX XXXXXXX XX 00000 *%
6676 0000 XXXXX XX. XXX XXXXXXX XX 00000 *%
6677 0000 XXXXXXX XXX., XXXXX 0 XXX XXXXXXX XX 00000 *%
6678 0000 XXXXXX XXXXXX XXX XXXXXXX XX 00000 *%
6680 000 XXXXX XXXXXXXXX XXXX XXXXXXXXX XX 00000 *%
6595 00000 XXXXXXXXXXXX XXX., XXX. 000 XXXXXXXXXX XX 00000 *%
6596 0000 X 0 XXXX XX XXXXXX XX 00000 *%
6597 SOUTHLD CTR. 00000 XXXXXX XX. XXXXXX XX 00000 *%
6598 00000 XXXXXXXX XXXXXXXX XXXX XX 00000 *%
6599 00000 XXXXX XXXXX XXXXXXX XX 00000 *%
6600 00000 XXXXXXX XXXXXXX XX 00000 *%
6601 00000 XXXXXXX XXXXXXX XX 00000 *%
6602 00000 XXXXXX XXXXXX XXXXXXXXX XX 00000 *%
6603 00000 X. 0 XXXX XXXXXXX XX 00000 *%
6604 00000 XXXXXXX XXXXXX XXXXX XX 00000 *%
6605 00000 XXX XXXX XXXXXXX XX 00000 *%
6606 16862 XXXXXXXX XXXXXXX XX 00000 *%
6607 0000 XXXX XXXX XXXXX XX 00000 *%
6681 0000 XXXXXXXXX XXXXXX XXXXXX XX 00000 *%
6683 0000 X. XXXXX XXXX XXXX XXXXXXX XX 00000 *%
6684 0000 XXXX XXXXXX XXXXXXX XXXX XX 00000 *%
6686 0000 X XXXXXXXX XXXXXXX XX 00000 *%
6764 00000 X. XXXXXXXXX XXXXXXX XX 00000 *%
6611 0000 XXXXXXXX XX XXXXX XX 00000 *%
6687 00 X. XXXXXXXXXX XXXXXXXX XX 00000 *%
6765 0000 XXXXXXX XXXXXXXX XX 00000 *%
6610 0000-0000 XXXXXX XX XXXXX XX 00000 *%
6789 0000 XXXXX XXXXX XX. XXXXXXX XX 00000 *%
6559 000 Xxxxxxxx Xx XXXXXX XX 00000 *%
6570 0000X XXXX XXXX XXXXXX XX 00000 *%
6571 0000 XXXXXX XXXX XXXXXXXXXXXX XX 00000 *%
6572 0000-X XXXXXX XXXXXX XXXXXXXXX XX 00000 *%
6682 0000 XXXXXX XXXXXX XX. XXXXXXXXXX XX 00000 *%
6691 0000 XXXXX XXXXX XXXX. XXXXXX XX 00000 *%
6692 000 XXXXXXX XXXXX XXXXXX XXXX XX 00000 *%
6693 0000 XXXX XXXXX XXXXXXXXXXXX XX 00000 *%
6694 0000 XXXXXXX XXXX. XXXXXXX XX 00000 *%
6695 0000 XXXXXXX XXXX. XXXXXXX XX 00000 *%
6696 0000 XXXXXXX XXXXXX, XXXXX X XXXXXXXXXXXX XX 00000 *%
6697 0000 X XXXXXXXX XXXXX XXXX #00 XXXXXXX XX 00000 *%
6698 000 X. XXXXX XXXX XXXXXX XX 00000 *%
6768 0000 XXXXXX XXXXXX XXX. 000 XXXXXXXXXXXX XX 00000 *%
6587 0000 X XXXXXXXXXX XXXXXX Xxxxxxxx XX 00000 *%
6588 0000 XXXXX XX Xxxxxxxx XX 00000 *%
6589 0000 XXXXXXX XX, #00 Xxxxxx XX 00000 *%
6590 00000 XXXXXX XXX Xxxxxxxxx XX 00000 *%
6591 00000 XXXXXX XXXXXX X. Xxxxxxxxx XX 00000 *%
6592 0000 XXXXXXXX XXX Xxxxxxxxx XX 00000 *%
6593 0000 X. XXXXXXXXX #00 Xxxxx XX 00000 *%
6699 0000 XXXXX XXXX XX. XXXXXXXX XX 00000 *%
6700 0000 00XX XX X.X. XXXXXX XX 00000 *%
6701 0000-X X. XXXXXXXXXX XXXXXX XX 00000 *%
6702 000 X XXXXX XX XXXXXXXX XX 00000 *%
6703 000 X. XXXXX XXXXX X XXXX XX 00000 *%
6704 0000 XXXXXXX XXX XXXX XX 00000 *%
6705 0000 XXXXXXX XXX. XXXXXXXXXXX XX 00000 *%
6706 0000 XXXXXX XXXX XXXXXXXXX XX 00000 *%
6708 00000 XXXXXXX XXXX. XXXXXX XXXXXXX XX 00000 *%
* Confidential treatment has been requested for certain portions of this
document pusuant to an application for confidential treatment sent to the SEC.
Such portions are omitted from this filing and filed separately with the SEC.
6710 00000 XXXXXX XXX. X. XXXXXXXXX XX 00000 *%
6711 0000 XXXXXXX XXX. XXXXXXXXXX XX 00000 *%
6712 0000 XXXXXXXXX XXX XXXXXXXX XX 00000 *%
6714 0000 X. XXXXXXXX XXXXX XXXXXXXXX XX 00000 *%
6715 00000 XXXX XXXXX XXXX XXXXXX XX 00000 *%
6716 000 X. XXXXXX XXXXXX XXXXXX XX 00000 *%
6769 0000 XXXXX XXX. XXXXXXXX XX 00000 *%
6770 000 XXXXXX XXXXXX XXXXXXXXXX XX 00000 *%
6771 0000 XXXXXX XXXXXX XXXXXXXXXX XX 00000 *%
6772 0000 XXXXXXXXXX XXXX XXXXXXX XX 00000 *%
6562 000 X 0XX XX Xxxxxxxxx XX 00000 *%
6774 0000 XXXXX 0XX XXXXXX XXXXXXXXXX XX 00000 *%
6787 0000 XXXXXXXXX XXXX XXXXXXXXX XX 00000 *%
6579 0000 XXXXXXXX XXXX Xxxxxxxxx XX 00000 *%
6580 0000 XXXXXXXXX XXXX XXXXXXXXXXX XX 00000 *%
6581 000 X. XXXXXXXXX Xxxxxxx XX 00000 *%
6582 0000 X. XXXXXX Xxxxxxx XX 00000 *%
6583 0000 XXXXX XXXXX Xxxxxxx XX 00000 *%
6584 0000 XXXXXXX Xxxxxxx XX 00000 *%
6622 0000 XX. XXXXXXXX XXXX. XXXXXXXXXXX XX 00000 *%
6642 000 XX XXXXX XX. XXXXXXXXXXXX XX 00000 *%
6717 000 XXXXX XXXXXX XXXXXXXXX XX 00000 *%
6718 0000 XXXXXXXXX XXXX XXXXXXXXX XX 00000 *%
6719 0000 XXXXXXXXXXX XXXX XXXXXXXXX XX 00000 *%
6720 0000 XXXXXXX 00 XXXXXXXXXXX XX 00000 *%
6721 0000 X XXXXXXXX, XXXXX 000 XXXXXXXXX XX 00000 *%
6722 0000 XXXXXXXXX XXX. XXXXXXXXX XX 00000 *%
6723 0000-X XXXXXXX XXX XXXXXXXXX XX 00000 *%
6724 0000 X. XXXXXXXXX XXXXX XXXXXXXXXXX XX 00000 *%
6725 0000 XXXXXX XXXX XXX. XXXXXXX XX 00000 *%
6750 000 X. XXXX XX. XXXXX XX 00000 *%
6775 000 X XXXXXX XXXXXX XXXXXX XX 00000 *%
6776 000 0XX XXXXXX XXXXX XXXXXXXXX XX 00000 *%
6777 000 XXXXXXXXXX XXXXXX XXXXX XX 00000 *%
6778 000 XXXXXXXX XXXX XXXXXXXXXX XX 00000 *%
6779 000 X. XXXXXXXX XXXXXXXXXX XX 00000 *%
6784 0000 XXXXXXXXX XXXX XXXXXXX XX 00000 *%
6801 0000-X XX XXXXXXXX XXXX XXXXXXXXXXXX XX 00000 *%
6731 000 XXXXXXXX XXXX XXXXX XX 00000 *%
6732 0000 XXXXXXXX XXX. #00 X-X XXXXXXXXX XX 00000 *%
6791 000 XXXX XXXXXX XXXXX XX. XXXXXXX XX 00000 *%
6802 0000 XXXXXXXXXXXXXX XXXX XXXXXXXX XX 00000 *%
6557 0000 X XXXX XX XXX XXXXXXXXX XX 00000 *%
6558 0000 XXXXX 00XX XX. XXXXXXXXX XX 00000 *%
6609 0000 X. 00XX XX XXXXXXXXX XX 00000 *%
Texas Capital Bank Locations
CENTER # H&R BLOCK OFFICE ADDRESS CITY STATE OFFICE ZIP
-------- ------------------------ ---- ----- ----------
6615 0000 XXXX XXXXXXXX XXXXXXX XX 00000 *%
6616 0000 X Xxxxxx Xxxxxx Xx XXXXXXX XX 00000 *%
6617 5851 SO CENTRAL XXXXXXX XX 00000 *%
6632 000 XXXX XXXXXXXX XXXX XXXXXX XX 00000 *%
6633 0000 X. XXXXXX XXXXXX XX. XXXXXXX XX 00000 *%
6734 0000 X XXXXXXX XXX XXXXXXXX XX 00000 *%
6735 000 XXXX 0XX XXXXXX XXXX XXXXXX XX 00000 *%
6736 0000 X XXXXXXX XXXX XX. XXXXXXXX XX 00000 *%
* Confidential treatment has been requested for certain portions of this
document pusuant to an application for confidential treatment sent to the SEC.
Such portions are omitted from this filing and filed separately with the SEC.
6511 0000 Xxxxxxxx Xx Xxxxxxxxxxx XX 00000 *%
6512 0000 Xxxxxx Xxxx Xxxxxxxxxxx XX 00000 *%
6513 000 XXXXXXX XXX. Xxxxxxxxxxx XX 00000 *%
6514 0000 XXXXXXXXX XXXX XXXXXXXXXX XX 00000 *%
6515 0000 Xxxxxxxxxx Xxxx XXXXXXXXXX XX 00000 *%
6516 0000 Xxxxxx Xx XXXXXXXXXX XX 00000 *%
6518 0000 Xxxx Xxx XXXXX XXXXXXXXX XX 00000 *%
6521 00 X Xxxx Xx Xxxxxx XX 00000 *%
6526 00000 X. 00XX XX. XXX XXXXXXX XX 00000 *%
6528 000 X. Xxxxxxxx Xxx. XXX XXXXXXXXXX XX 00000 *%
6529 0000 Xxxxxx Xxx # X Xxxxxxx XX 00000 *%
6530 00000 XXXXXXXXX XXXX XXXXXXXXX XX 00000 *%
6531 0000 XXXXXXXX XXX Xxxx Xxxxx XX 00000 *%
6533 000 X XXXXX XXX XXXXXX XX 00000 *%
6534 0000 Xxxxxxx Xx Xxxx #0, Xxx. #0 XXXXXXX XX 00000 *%
6535 000 X XXXXXX XXXXX XXXX XXXXXXX XX 00000 *%
6548 0000 Xx Xxxxxx Xxx Xxxxxxxxx XX 00000 *%
6561 0000 XX XXXXX XXXX. Xxx Xxxxx XX 00000 *%
6618 0000 X. XXXXXXXX XXXXXX XXX XXXXXXX XX 00000 *%
6619 0000 X. XXXX XXXX XXX XXXXXXX XX 00000 *%
6620 000 X XXXXXXXXXX XXXX XXXXXXXXX XX 00000 *%
6621 0000 XXXX XXXXX XXXX Xxxx Xxxxx XX 00000 *%
6623 0000 X XXXXX XXXXX XX XXXXX XX 00000 *%
6624 0000 XXXX XXX XXXXXXXX XXXXX XX 00000 *%
6625 0000 X. XXXXX XXXXXXX Xxxxxxxxx XX 00000 *%
6626 0000 X XXXXXX XXX Xxx Xxxxx XX 00000 *%
6627 0000 X XXXXXX XXXXXX Xxxxxx XX 00000 *%
6628 000 X. XXXXXXX XXX, XXXXX X XXXXXXXX XX 00000 *%
6629 00000 XXXXXX XXXX. XXXXXX XXXXXXX XX 00000 *%
6634 0000 XXXXX XX XXXXXXXXXXX XX 00000 *%
6635 0000-X XXXXX XXXXX XXXXXXXXXXX XX 00000 *%
6636 0000 X. XXXXXX XX. XXXXXXXX XX 00000 *%
6637 0000 X XXXXXXX XXXXX XXXX XXXXXXX XX 00000 *%
6639 00000 00XX XXXXXX XXXX XXXXXXXXX XX 00000 *%
6737 0000 X. XXXXXXXXXX #000 XXXXXX XX 00000 *%
6738 0000 XXXX XXX. XXXXXXXXXX XX 00000 *%
6739 0000 XXXX XXXX, #X XXX XXXX XX 00000 *%
6741 0000 X. XXXXXXXX XXXX #X XXXX XX XXXXXXXX XX 00000 *%
6742 0000 X. XXXXXX XXXX. XXX XXXXXXX XX 00000 *%
6743 000/000 XXXXXXXXXX XXXX XXXXXX XXXXXX XX 00000 *%
6745 0000 XXXXXXXX XXXXX. #000 XXXXXX XXXXXXXXX XX 00000 *%
6746 0000 X. XXXX, #000 XXXXXX XX 00000 *%
6803 00000 XXXXXXX XX XXX XXXX XX 00000 *%
6804 0000 XXXXXXXXX XXX XXXXXXX XX 00000 *%
6805 000 XXXXXXXXX XXXX, XXX. #000 XXXX XXXXXXXXXX XX 00000 *%
6807 0000 XXXXXXX XXX. XXXXXXXX XX 00000 *%
6640 2919 & 0000 X. 00XX XXX. XXXXXX XX 00000 *%
6748 0000 XXXXX XXXXXXX XXXX. XXXXXXXX XXXXXXX XX 00000 *%
6670 0000 XXXXX XXXXXX, XXXXX 00 XXXXXXX XX 00000 *%
6760 0000-00 XXXXX XXX XXXXXX XXXX XX 00000 *%
6612 0000 X 00 XX XXXXX XX 00000 *%
6688 0000 XXXXXXXXXX XXX. XXXXX XXXXX XXXX XX 00000 *%
6689 0000 X XXXXXX XXXXXXX XX 00000 *%
6690 0000 XXXXX XXXX XXXXXX XX 00000 *%
6766 0000 X. XXXXX XXX. XXXX XX 00000 *%
6767 0000 XXXX XXXXXXX XX. XXXXXX XXXX XX 00000 *%
6788 0000 X. XXXXXXXX XXXX./XXXX. X XXX XXXXX XX 00000 *%
6792 0000 XXXXX XXXXXX XX. X. XXX XXXXX XX 00000 *%
* Confidential treatment has been requested for certain portions of this
document pusuant to an application for confidential treatment sent to the SEC.
Such portions are omitted from this filing and filed separately with the SEC.
6507 0000 XXXXX XXXXXXXXX, #000X XXXXXX XX 00000 *%
6549 0000 X Xxxxxxxxx XX Xxxxx XX 00000 *%
6553 0000 Xxxxxx X. Xxxx Xxxx. XXXXXX XX 00000 *%
6554 0000 X. XXXXXXX #000 XXXXXX XX 00000 *%
6555 000 XXXXXXXXX XXXXXXX XXXXXX XX 00000 *%
6726 0000 XXXX XXXXX XXXX XXXX XXXXX XX 00000 *%
6727 0000-X XXXXXX XXXXXX XXXX XXXXX XX 00000 *%
6728 0000-X XXXX XXXXX XXXX. XXXX XXXXX XX 00000 *%
6729 0000 X. XXXXXXX XXX. #000 XXXXXX XX 00000 *%
6730 000 X XXXXX XXXX XXXXX XX 00000 *%
6780 000 X XXXX XXXXXXXX XX 00000 *%
6781 0000 X. XXXX 000 #000 XXXXXXXX XX 00000 *%
6782 0000 XXXXXXX XX XXXX XX 00000 *%
6783 0000 X 0XX XXXXXX XXXXXX XX 00000 *%
6793 0000 XXXXXXXXX XX. XXXXXX XX 00000 *%
6794 000 X. XXXXXXXX, XXX. 000 XXXXXX XX 00000 *%
6795 000X XXXXXXX 00 XXX XXXXXX XX 00000 *%
6796 0000 X. XXXXXX XX. XXXXXX XX 00000 *%
6797 0000 X. XXXXXXXXX XXXXXXX XX 00000 *%
6798 0000 XXX XXXXXXXX XXXXXX XX 00000 *%
6800 0000 X. XXXXXXX XX. XXXXXX XX 00000 *%
6749 000 X. XXXXX XXXXXX XXXXXXX XXXXX XX 00000 *%
6755 0000 XXXXXXXXXX XXXX., #000 XXXXXX XX 00000 *%
6758 000 XXXX 0XX XXX. XXXX XX 00000 *%
6763 000 X. XXXXX XXX. XXXXX X XXXX XXXXXX XX 00000 *%
6773 0000 X. XXXXX XXXXXX XXXXXXXXX XX 00000 *%
* Confidential treatment has been requested for certain portions of this
document pusuant to an application for confidential treatment sent to the SEC.
Such portions are omitted from this filing and filed separately with the SEC.
EXHIBIT 2.01
FORM OF NOTE
NOTE
$190,000,000 December 18, 2002
FOR VALUE RECEIVED, the undersigned, ACE FUNDING LLC, (the "Borrower"),
hereby promises to pay to the order of AUTOBAHN FUNDING COMPANY LLC (the
"Lender"), on or before the Maturity Date (as defined in the
Loan and Servicing
Agreement referred to below), the principal amount of ONE HUNDRED AND NINETY
MILLION DOLLARS ($190,000,000), or, if less, the aggregate unpaid principal
amount of all of the Loans (as defined in the Loan and Servicing Agreement,
dated as of December 18, 2002 , among the Borrower, the Lender, ACE Cash
Express, Inc., in its individual capacity and as Check-Xxxxxx, DZ Bank AG
Deutsche Zentral-Genossenschaftsbank, as Administrative Agent and as Liquidity
Agent and U.S. Bank National Association, as Collateral Agent; as the same may
be amended, modified or supplemented from time to time, the "Loan and Servicing
Agreement") made by the Lender to the Borrower pursuant to the Loan and
Servicing Agreement (as shown in the records of the Administrative Agent or, at
the Administrative Agent's option, on Schedule I attached hereto and any
continuation thereof). Each Loan shall be payable from time to time in amounts
as provided in the Loan and Servicing Agreement, and in any event shall be
payable on the Maturity Date. Capitalized terms used but not defined herein have
the meanings provided in the Loan and Servicing Agreement.
The undersigned also promises to pay interest on the unpaid principal
amount of each Loan evidenced by this Note from the date of such Loan until such
Loan is paid in full, payable at the rates and on the dates specified in the
Loan and Servicing Agreement.
This Note evidences indebtedness incurred as Loans under, and is
entitled to the benefits of, the Loan and Servicing Agreement, to which Loan and
Servicing Agreement reference is hereby made for a statement of its terms and
conditions, including those under which the maturity of this Note may be
accelerated. Upon the occurrence of an Event of Default as specified in the Loan
and Servicing Agreement, the principal balance hereof and the interest accrued
hereon may be declared to be forthwith due and payable.
This Note is secured by and entitled to the benefits specified in
Section 1.03 of the Loan and Servicing Agreement, and reference is hereby made
to such Section for a description of the nature and extent of the collateral and
the rights of the parties to and beneficiaries of the Loan and Servicing
Agreement in respect of such collateral.
In addition to and not in limitation of the foregoing and the
provisions of the Loan and Servicing Agreement, the undersigned further agrees,
subject only to any limitation imposed by applicable law, to pay on demand all
expenses, including reasonable attorneys' fees and legal expenses, incurred by
the holder of this Note in endeavoring to collect any amounts payable hereunder
which are not paid when due, whether by acceleration or otherwise.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
This Note shall be governed by and construed in accordance with the
laws of the State of New York (including Sections 5-1401 and 5-1402 of the
General Obligations Law of the State of New York, but otherwise without regard
to conflicts of law principles).
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Borrower has caused this instrument to be
signed, manually or in facsimile, by its duly authorized officer as of the date
above first written.
ACE FUNDING LLC
By:
------------------------------------
Name:
Title:
SCHEDULE I
Schedule attached to Note, dated December 18, 2002, of ACE FUNDING LLC
payable to the order of AUTOBAHN FUNDING COMPANY LLC.
Principal
Date of Amount of Amount of Amount Notation
Loan Loan Rate Repayment Outstanding Made by
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------
EXHIBIT 5.01(U)
NON-NEGOTIABLE
TERM NOTE
December 18, 2002
FOR VALUE RECEIVED, the undersigned, ACE FUNDING LLC, a Delaware
limited liability company (the "Company"), promises to pay to ACE CASH EXPRESS,
INC., a Texas corporation ("ACE"), on the terms and subject to the conditions
set forth herein and in the Loan and Servicing Agreement referred to below, a
principal sum without interest of up to ONE MILLION NINE HUNDRED THOUSAND
DOLLARS ($1,900,000) (as such amount may be increased by borrowings hereunder
from time to time, reduced by any repayments hereunder and increased by
reborrowings hereunder, the "Principal Amount").
1. Loan and Servicing Agreement. This Term Note is the Company Note
described in, and is subject to the terms and conditions set forth in, that
certain Loan and Servicing Agreement dated as of December 18, 2002, among ACE
Funding LLC, as Borrower, ACE Cash Express, Inc., in its individual capacity and
as Check-Xxxxxx, Autobahn Funding Company LLC, as Lender, DZ Bank AG Deutsche
Zentral-Genossenschaftsbank Frankfurt am Main, as Administrative Agent and as
Liquidity Agent, and U.S. Bank National Association, as Collateral Agent (as the
same may be amended, supplemented, amended and restated or otherwise modified in
accordance with its terms, the "Loan and Servicing Agreement"). Reference is
hereby made to the Loan and Servicing Agreement for a statement of certain other
rights and obligations of the Company and ACE.
2. Definitions. Capitalized terms used but not defined herein have the
meanings provided in the Loan and Servicing Agreement. In addition, as used
herein, the following terms have the following meanings:
"Bankruptcy Proceedings" has the meaning set forth in clause
(b) of paragraph 6 hereof.
"Final Maturity Date" means the the date that falls ten (10)
Business Days after the Final Payout Date.
"Senior Interests" means, collectively and without
duplication, (i) all amounts accrued in respect of the Loans, (ii) all
amounts payable pursuant to Sections 3.03(d) and (e), 4.01, 4.02 and
4.03 of the Loan and Servicing Agreement, and (iii) all other
obligations of the Company and ACE that are due and payable to (a) the
Lender, the Administrative Agent, the Liquidity Agent, the Collateral
Agent, the other Secured Parties and their respective successors,
permitted transferees and assigns arising in connection with the
Transaction Documents and (b) any Indemnified Party arising in
connection with the Loan and Servicing Agreement, in each case,
howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become
due, together with any and all interest accruing on any such amount
after the commencement of any Bankruptcy Proceedings, notwithstanding
any
provision or rule of law that might restrict the rights of any Senior
Interest Holder, as against the Company or anyone else, to collect such
interest.
"Senior Interest Holders" means, collectively, Lender, the
Administrative Agent, the Liquidity Agent, the Collateral Agent, the
Affected Parties, the Indemnified Parties and the other Secured
Parties.
"Subordination Provisions" means, collectively, clauses (a)
through (l) of paragraph 6 hereof.
3. Principal Payment Dates. Subject to the Subordination Provisions set
forth below, payments of the principal amount of this Term Note shall be made as
follows:
(a) The entire Principal Amount shall be paid on the Final
Maturity Date.
(b) Subject to the Subordination Provisions set forth below,
the principal amount of this Term Note may be prepaid in whole or in
part on any Business Day without premium or penalty.
4. Payment Mechanics. All payments of principal hereunder are to be
made in lawful money of the United States of America.
5. Enforcement Expenses. In addition to and not in limitation of the
foregoing, but subject to the Subordination Provisions set forth below and to
any limitation imposed by applicable law, the Company agrees to pay all
expenses, including reasonable attorneys' fees and legal expenses, incurred by
ACE in seeking to collect any amounts payable hereunder which are not paid when
due.
6. Subordination Provisions. The Company covenants and agrees, and ACE
and any other holder of this Term Note (collectively, ACE and any such other
holder are called the "Holder"), by its acceptance of this Term Note, likewise
covenants and agrees on behalf of itself and any holder of this Term Note, that
the payment of the principal amount of this Term Note is hereby expressly
subordinated in right of payment to the payment and performance of the Senior
Interests to the extent and in the manner set forth in the following clauses of
this paragraph 9:
(a) No payment or other distribution of the Company's assets
of any kind or character, whether in cash, securities, or other rights
or property, shall be made on account of this Term Note except (i) to
the extent such payment or other distribution is made pursuant to
clause (a) of paragraph 6 of this Term Note, (ii) at any time during a
Usage Period, the Company is permitted to pay and the Holder is
permitted to receive principal payments in respect of this Term Note
from funds received by Borrower in accordance with the priority of
payments set forth in Section 3.03 of the Loan and Servicing Agreement,
provided that, after giving effect to such payments, the outstanding
principal balance on this Term Note will be not less than one percent
(1%) of the outstanding Net Balance, and (iii) immediately following
the end of a Usage Period, the Company is permitted to pay and the
Holder is permitted to receive payments necessary to pay this Term Note
in full from funds received by
2
Borrower in accordance with the priority of payments set forth in
Section 3.03 of the Loan and Servicing Agreement, provided that, the
outstanding Loans have been paid in full.;
(b) In the event of any dissolution, winding up, liquidation,
readjustment, reorganization or other similar event relating to the
Company, whether voluntary or involuntary, partial or complete, and
whether in bankruptcy, insolvency or receivership proceedings, or upon
an assignment for the benefit of creditors, or any other marshalling of
the assets and liabilities of the Company or any sale of all or
substantially all of the assets of the Company (such proceedings being
herein collectively called "Bankruptcy Proceedings"), the Senior
Interests shall first be paid and performed in full and in cash before
ACE shall be entitled to receive and to retain any payment or
distribution in respect of this Term Note. In order to implement the
foregoing: (i) all payments and distributions of any kind or character
in respect of this Term Note to which Holder would be entitled except
for this clause (b) shall be made directly to the Collateral Agent (for
the benefit of the Senior Interest Holders); (ii) Holder shall promptly
file a claim or claims, in the form required in any Bankruptcy
Proceedings, for the full outstanding amount of this Term Note, and
shall use commercially reasonable efforts to cause said claim or claims
to be approved and all payments and other distributions in respect
thereof to be made directly to the Collateral Agent (for the benefit of
the Senior Interest Holders) until the Senior Interests shall have been
paid and performed in full and in cash; and (iii) Holder hereby
irrevocably agrees that the Collateral Agent, in the name of Holder or
otherwise, may demand, xxx for, collect, receive and receipt for any
and all such payments or distributions, and file, prove and vote or
consent in any such Bankruptcy Proceedings with respect to any and all
claims of Holder relating to this Term Note, in each case until the
Senior Interests shall have been paid and performed in full and in
cash;
(c) In the event that Holder receives any payment or other
distribution of any kind or character from the Company or from any
other source whatsoever, in respect of this Term Note, other than as
expressly permitted by the terms of this Term Note, such payment or
other distribution shall be received in trust for the Senior Interest
Holders and shall be turned over by Holder to the Collateral Agent (for
the benefit of the Senior Interest Holders) forthwith. Holder will xxxx
its books and records so as clearly to indicate that this Term Note is
subordinated in accordance with the terms hereof. All payments and
distributions received by the Collateral Agent in respect of this Term
Note, to the extent received in or converted into cash, may be applied
by the Collateral Agent (for the benefit of the Senior Interest
Holders) first to the payment of any and all expenses (including
reasonable attorneys' fees and legal expenses) paid or incurred by the
Senior Interest Holders in enforcing these Subordination Provisions, or
in endeavoring to collect or realize upon this Term Note, and any
balance thereof shall, solely as between ACE and the Senior Interest
Holders, be applied by the Collateral Agent (in the order of
application set forth in Section 3.03 of the Loan and Servicing
Agreement) toward the payment of the Senior Interests; but as between
the Company and its creditors, no such payments or distributions of any
kind or character shall be deemed to be payments or distributions in
respect of the Senior Interests;
(d) Notwithstanding any payments or distributions received by
the Senior Interest Holders in respect of this Term Note, while any
Bankruptcy Proceedings are pending Holder
3
shall not be subrogated to the then existing rights of the Senior
Interest Holders in respect of the Senior Interests until the Senior
Interests have been paid and performed in full and in cash. If no
Bankruptcy Proceedings are pending, Holder shall only be entitled to
exercise any subrogation rights that it may acquire by reason of a
payment or distribution to the Senior Interest Holders in respect of
this Term Note;
(e) These Subordination Provisions are intended solely for the
purpose of defining the relative rights of Holder, on the one hand, and
the Senior Interest Holders on the other hand. Nothing contained in
these Subordination Provisions or elsewhere in this Term Note is
intended to or shall impair, as between the Company, its creditors
(other than the Senior Interest Holders) and Holder, the Company's
obligation, which is unconditional and absolute, to pay Holder the
principal of this Term Note as and when the same shall become due and
payable in accordance with the terms hereof or to affect the relative
rights of Holder and creditors of the Company (other than the Senior
Interest Holders);
(f) Holder shall not, until the Senior Interests have been
paid and performed in full and in cash, (i) cancel, waive, forgive, or
commence legal proceedings to enforce or collect, or subordinate to any
obligation of the Company, howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, or now or hereafter
existing, or due or to become due, other than the Senior Interests,
this Term Note or any rights in respect hereof, (ii) assign or transfer
this Term Note or (iii) convert this Term Note into an equity interest
in the Company, unless Holder shall have received the prior written
consent of the Administrative Agent and the Lender in each case;
(g) Holder shall not, without the advance written consent of
the Administrative Agent, the Collateral Agent and the Lender,
commence, or join with any other Person in commencing, any Bankruptcy
Proceedings with respect to the Company until at least one year and one
day shall have passed since the Senior Interests shall have been paid
and performed in full and in cash;
(h) If, at any time, any payment (in whole or in part) of any
Senior Interest is rescinded or must be restored or returned by a
Senior Interest Holder (whether in connection with Bankruptcy
Proceedings or otherwise), these Subordination Provisions shall
continue to be effective or shall be reinstated, as the case may be, as
though such payment had not been made;
(i) Each of the Senior Interest Holders may, from time to
time, at its sole discretion, without notice to Holder, and without
waiving any of its rights under these Subordination Provisions, take
any or all of the following actions: (i) retain or obtain an interest
in any property to secure any of the Senior Interests; (ii) retain or
obtain the primary or secondary obligations of any other obligor or
obligors with respect to any of the Senior Interests; (iii) extend or
renew for one or more periods (whether or not longer than the original
period), alter or exchange any of the Senior Interests, or release or
compromise any obligation of any nature with respect to any of the
Senior Interests; (iv) amend, supplement, amend and restate, or
otherwise modify any Transaction Document; and (v) release its security
interest in, or surrender, release or permit any substitution or
exchange for all or any
4
part of any rights or property securing any of the Senior Interests, or
extend or renew for one or more periods (whether or not longer than the
original period), or release, compromise, alter or exchange any
obligations of any nature of any obligor with respect to any such
rights or property;
(j) Holder hereby waives: (i) notice of acceptance of these
Subordination Provisions by any of the Senior Interest Holders; (ii)
notice of the existence, creation, non-payment or non-performance of
all or any of the Senior Interests; and (iii) all diligence in
enforcement, collection or protection of, or realization upon, the
Senior Interests, or any thereof, or any security therefor;
(k) Each of the Senior Interest Holders may, from time to
time, on the terms and subject to the conditions set forth in the
Transaction Documents to which such Persons are party, but without
notice to Holder, assign or transfer any or all of the Senior
Interests, or any interest therein; and, notwithstanding any such
assignment or transfer or any subsequent assignment or transfer
thereof, such Senior Interests shall be and remain Senior Interests for
the purposes of these Subordination Provisions, and every immediate and
successive assignee or transferee of any of the Senior Interests or of
any interest of such assignee or transferee in the Senior Interests
shall be entitled to the benefits of these Subordination Provisions to
the same extent as if such assignee or transferee were the assignor or
transferor; and
(l) These Subordination Provisions constitute a continuing
offer from the holder of this Term Note to all Persons who become the
holders of, or who continue to hold, Senior Interests; and these
Subordination Provisions are made for the benefit of the Senior
Interest Holders, and the Administrative Agent may proceed to enforce
such provisions on behalf of each of such Persons.
7. General. No failure or delay on the part of the Holder in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Term Note shall in any event be effective unless (i) the same shall be
in writing and signed and delivered by the Company and Holder and consented to
by the Administrative Agent and (ii) all consents required for such actions
under the Transaction Documents shall have been received by the appropriate
Persons.
8. No Negotiation. This Term Note is not negotiable.
5
9. GOVERNING LAW. THIS TERM NOTE SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT
OTHERWISE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
10. Captions. Paragraph captions used in this Term Note are for
convenience only and shall not affect the meaning or interpretation of any
provision of this Term Note.
[Remainder of page intentionally left blank]
6
IN WITNESS WHEREOF, the Company has caused this instrument to be
signed, manually or in facsimile, by its duly authorized officer as of the date
above first written.
ACE FUNDING LLC
By:
---------------------------------------
Name:
Title:
EXHIBIT 5.01(v)
ELECTRONIC PRESENTMENT AGREEMENT
This Agreement is made as of the 6th day of January, 2003 ("Effective
Date"), between Ace Funding, LLC, a limited liability company organized under
the laws of Delaware ("Funding") and a subsidiary of ACE Cash Express, Inc., a
Texas corporation, having its principal place of business at 0000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, ACE Cash Express, Inc., a Texas
corporation, having its principal place of business at 0000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000 ("ACE"), H&R Block Tax Services, Inc., a Missouri
corporation ("Block"), Imperial Capital Bank, a California state-chartered bank
and subsidiary of ITLA Capital Corporation ("Bank"), and Household Tax Masters
Inc., a Delaware corporation having its principal place of business at 000
Xxxxxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000
("HTM").
A. WHEREAS, pursuant to that certain License Agreement between ACE and
Block dated November 22, 2000, and Addendum No. 1 to the License Agreement dated
May 31, 2001 (collectively the "License") ACE operates Self Service Machines
("SSMs") in approximately 248 Block business premises ("locations"), during that
period of time from the first Monday after January 1st through May 31st of each
year ("Tax Season");
B. WHEREAS, Block desires to expedite the disbursement of cash to their
customers ("Customers") who obtain Refund Anticipation Loans ("RAL") or Refund
Anticipation Checks ("RAC") (collectively, the "Customer Checks"); and
C. WHEREAS, HTM provides the Bank with critical services in order for
Bank to conduct the Refund Anticipation Loan program ("RAL Program"); and
D. WHEREAS, Bank is the originator of Refund Anticipation Loans for the
RAL program and the issuer of the Refund Anticipation Checks; and
E. WHEREAS, ACE wishes to facilitate cash disbursements through the
SSMs and to deliver to the Bank, at the conclusion of the Tax Season, the
Customer Checks that were deposited into the SSMs during the Tax Season; and
F. WHEREAS, the parties hereto desire to provide for electronic
presentment of Customer Checks to Bank in accordance with the terms and
conditions of this Agreement to facilitate the payment of amounts due with
respect to Customer Checks cashed in SSMs.
NOW, THEREFORE, ACE, Funding, Bank, Block and HTM agree as follows:
1. SSM CUSTOMER PROCEDURES AND DISCLOSURE
1.1. Paper Checks - When a Customer applies and is accepted for a RAL or RAC and
indicates that he/she wants to utilize a SSM to cash his/her Customer Check,
Block shall provide all disclosures to the Customer as previously agreed to
between HTM and Block, which in any event shall be in accordance with applicable
law and regulations. Block and ACE agree and warrant that no part of any check
cashing fee or other fee charged for the privilege of using the SSM shall be
included in or deducted from the amount of the RAL or RAC prior to the Customer
check being cashed in the SSM.
1.2. Electronic Checks - When a Customer applies and is accepted for a RAL or
RAC and indicates that he/she wants his/her proceeds to be disbursed in cash
from a SSM, Block agrees to provide that Customer with Truth-in-Lending and
other disclosures required by applicable law and regulation and obtain the
Customer's agreement to those disclosures (including by signature, whether
physical or electronic) in a form and manner to be determined solely by HTM and
Bank prior to any cash being disbursed. Further, Block and ACE agree, represent
and warrant that no part of any check cashing fee, funds disbursement fee or
other fee charged for the privilege of using the SSM shall be included in or
deducted from the amount of the RAL or RAC prior to the proceeds being disbursed
from the SSM. ACE agrees that each such disbursement transaction shall be
considered as being accomplished through the issuance and negotiation of a check
by electronic means and that such issuance and negotiation shall be governed by
the Uniform Commercial Code ("UCC") as that code has been enacted in the State
of New York.
2. SETTLEMENT DIRECTIONS
Each business day, at 3:00 p.m. Central Time, ACE will compile (i) the
check approval and check print files for Customer Checks cashed in SSMs pursuant
to this Agreement which are presented electronically and that originate from the
Block host system ("Block's Check Authorization File") and are received by the
ACE host system and (ii) the cash dispensed from SSMs in order to prepare a
checks cleared file in NACHA format. This process will generate pre-commit
information on the Customer Checks that were cashed in the SSMs after 3:00 p.m.
(local time) the immediately preceding business day until 3:00 p.m. (local time)
of the current business day. ACE will, following review and correction, if any,
finalize and commit the file by 4:00 p.m. Central Time on such business day,
thereby automatically creating a check cleared file in NACHA Format (a "Check
Cleared File"). By 4:00 p.m. on such day ACE will electronically send the Check
Cleared File to HTM for review and confirmation.
By 4:00 p.m. on such day such Check Cleared File shall include, with
respect to each Customer Check, the data indicated on the attached Exhibit "A".
HTM shall review and approve each such Check Cleared File, provided that HTM may
elect, by notice to ACE, to disapprove specific Customer Checks ("Exceptions").
Upon such approval, and in time to permit the wire transfer by the time set
forth below, HTM shall forward such Check Cleared File (adjusted for the
Exceptions) to Bank with instructions to wire funds to U.S. Bank, National
Association as collateral agent for secured parties pursuant to the following
wire instructions: Account # 1801211673C5 ABA #091000622 Re: 33480100 Attn.:
Xxxx Xxxxxx/Ace Funding, which instructions shall not be modified without the
prior written consent of U.S. Bank National Association, the designated
recipient of such funds. Bank shall use its best efforts to complete such wire
on or before 1:00 pm Pacific Time of the business day following receipt of the
Check Cleared File authorizing the wire, but shall, in any event, complete such
wire transfer on the next business day.
3. CHECK PROCESSING AND DELIVERY
(a) The endorsement on paper checks shall be voided by ACE
immediately upon deposit into a SSM.
2
(b) ACE will be responsible for voiding and safekeeping the checks
until the conclusion of Tax Season, at which time ACE will
deliver the voided checks to HTM as servicer for Bank.
(c) ACE and Bank will resolve Exceptions, through HTM as servicer for
Bank, on an individual item-by-item basis. If ACE and HTM are
unable to resolve an Exception with respect to any specific check
cashed in an SSM and have it included in a Check Cleared File,
ACE shall retain all remedies under the applicable Uniform
Commercial Code with respect to pursuing payment of such Customer
Check by Bank.
4. GUARANTEE OF CHECK AUTHORIZATION FILES
As an inducement for HTM and Bank to enter into this Agreement, ACE and
Block hereby represent, warrant and guarantee that the information contained in
the Check Cleared File delivered to HTM and to Bank from ACE will be true and
accurate in all material respects. Further, Block represents, warrants and
guarantees that the information contained in Block's Check Authorization File
will be true and correct in all material respects. ACE and Block represent,
warrant and guarantee the identity of the Customers who cash Customer Checks or
otherwise receive funds through transactions appearing in the Check Cleared
File, provided the foregoing shall not modify, as between ACE and Block, the
risk-sharing terms of the License. With respect to all such transactions, ACE
makes to Bank and guarantees all warranties of presentment contained in UCC
Sections 3-417 and 4-208. This Agreement shall be considered an agreement for
Electronic Presentment pursuant to UCC Section 4-110. Bank agrees (i) to pursue
any claims against Block or ACE directly against Block and ACE and (ii) under no
circumstances shall any funds to be wired pursuant to Section 2 following HTM's
approval, subject to Exceptions, of the Check Cleared File, hereof be subject to
any offset or deduction of any kind, with respect to disputes with Block or ACE
or otherwise.
5. CUSTOMER PRIVACY
A. ACE and/or Block, in performing their obligations pursuant to this
Agreement, may have access to or receive disclosure of information (either from
Bank, HTM or a Customer) about a Customer, including but not limited to,
Non-Public Personal Information, as hereinafter defined in subparagraph b.
below. ACE and Block agree that all such information obtained from Bank, HTM or
from a Customer in the course of this Agreement (hereinafter referred to as
"Consumer Personal Information") by ACE or Block, their directors, officers,
employees, subcontractors and any other party with whom they contract, is and
shall be considered, confidential and neither ACE nor Block shall use, disclose,
give, sell, or otherwise transfer or make available, directly or indirectly,
Consumer Personal Information to any third party, except as may be necessary to
perform their obligations pursuant to this Agreement and except as may be agreed
upon in writing by Bank specifically. ACE and Block shall adopt and maintain
respective comprehensive privacy policies with respect to their handling of the
Consumer Personal Information, which policies, in any event, shall at all times
comply with applicable law and regulation governing the use and dissemination of
such Consumer Personal Information. Notwithstanding the foregoing, Consumer
Personal Information obtained from Customers by Block and ACE, respectively, may
be used by Block and ACE as allowed in their respective privacy policies.
3
B. All parties agree that, during the term of this Agreement and
thereafter, Consumer Personal Information will be used by each party solely
according to the terms of their respective privacy policies.
C. Each party has developed, implemented and will maintain effective
information security policies and procedures that include administrative,
technical and physical safeguards designed to 1) ensure the security and
confidentiality of Consumer Personal Information provided hereunder, 2) protect
against anticipated threats or hazards to the security or integrity of such
Consumer Personal Information, 3) protect against unauthorized access or use of
such Consumer Personal Information and 4) comply with applicable law and
regulations. All personnel of each party handling such Consumer Personal
Information have been appropriately trained in the implementation of the party's
information security policies and procedures. Each party regularly audits and
reviews its information security policies and procedures to ensure their
continued effectiveness and determine whether adjustments are necessary in light
of circumstances including, without limitation, changes in technology, customer
information systems or threats or hazards to Consumer Personal Information.
D. Bank covenants and agrees that Bank will not use any information
received by reason of this Agreement to market products or services to Block
Customers. ACE covenants and agrees that ACE will not use any information
contained in Block's Check Authorization File received by ACE or any other
information which is confidential pursuant to the License to market products or
services to Block Customers.
6. TERM; RENEWALS; TERMINATION
A. The initial term of this Agreement shall commence on January 1, 2003
and end at midnight Central Time, May 31, 2003, unless terminated earlier
pursuant to Section 6(B).
B. HTM, Bank or Block may terminate this Agreement immediately upon
notice to ACE and Block (if such notice is from HTM or Bank) or notice to ACE,
HTM and Bank (if such notice is from Block) upon any of the following events
(provided Block's termination rights shall not apply to matters in paragraph
(i)): (i) ACE presents paper items to Bank for which payment has already been
received or for which electronic presentment has already been made; (ii) ACE
fails to maintain adequate insurance coverage for the content of the SSMs; (iii)
ACE shall elect to wind up or dissolve its operation or is wound up and
dissolved; becomes insolvent or repeatedly fails to pay its debts as they become
due; makes an assignment for the benefit of creditors; files a voluntary
petition in bankruptcy, or for reorganization or is adjudicated as bankrupt or
insolvent; or has a liquidator or trustee appointed over its affairs; (iv) if
there occurs any material adverse change in ownership of ACE or if a material
adverse change occurs in ACE's financial condition as determined by HTM or Bank
in their sole discretion, or if ACE suspends or goes out of business or
substantially reduces its business operations or sends a notice of a proposed
bulk sale of all or part of its business; (v) ACE materially breaches its
obligations or any guarantee, warranty or representation under this Agreement;
(vi) Bank or HTM has reasonable cause to believe that ACE will not be able to
perform its obligations under this Agreement as the result of adverse regulatory
rulings or decisions; (vii) Bank or HTM has reasonable cause to believe that
Block or ACE, their employees or agents have engaged in any fraudulent activity
in connection with any of the transactions contemplated by this Agreement or
Bank or HTM receives a disproportionate
4
number of Customer inquiries, disputes, or complaints; or (viii) in Bank's or
HTM's judgment, any applicable law requires that this Agreement or any party's
rights or obligations hereunder be amended, modified, waived or suspended in any
material respect and such amendment is not completed within a reasonable time
following notice.
C. Excluded SSMs. This Agreement shall not include the ten SSMs listed
on Exhibit B unless and until HTM and Bank, in their sole discretion, each
notify Ace and Block that such SSMs will be included in this Agreement.
D. Ace or Funding shall have the right to terminate this Agreement
immediately upon notice to Block, HTM and Bank if (a) Bank materially breaches
its obligations hereunder and fails to cure such breach with two (2) business
days of written notice thereof, or (b) HTM materially breaches its obligations
hereunder and fails to cure such breach with two (2) business days of written
notice thereof.
E. Termination of this Agreement shall not affect any of the Parties'
responsibilities for performing its obligations under this Agreement prior to
the effective date of such termination.
F. Termination of this Agreement shall not, in any way, affect Ace's,
Funding's or U.S. Bank National Association's (as collateral agent) ability to
present paper checks cashed at SSMs and not paid in accordance with the terms
hereof in accordance with customary deposit procedures, including without
limitation, checks cashed following termination (regardless of whether any
endorsement thereon has been voided).
G. Sections 5, 6, 7, 13 and 14 shall survive termination of this
Agreement.
7. INDEMNIFICATION
ACE shall be liable to and shall defend, indemnify and hold harmless
Bank, HTM and their Affiliates and their respective officers, employees, agents
and directors from any losses, damages, claims or complaints threatened against
or incurred by Bank or HTM or any Affiliate of Bank or HTM or their respective
officers, employees, agents and directors arising out of (i) ACE's actual or
alleged failure to comply with its obligations under this Agreement or breach of
a representation, warranty or guarantee; (ii) any claim, dispute, complaint or
setoff against Bank or HTM or any affiliate of Bank or HTM made by a Customer
with respect to anything actually or allegedly done or not done by ACE in
connection with this Agreement; (iii) the death or injury to any person or the
loss, destruction or damage to any property arising out of anything done or not
done by ACE in connection with the design, manufacture or furnishing by ACE of
any SSM; (iv) any claim or complaint of a third party against Bank or HTM or any
affiliate of Bank or HTM in connection with ACE's advertisements and promotions
relating to the check cashing services under this Agreement; (v) any actual
illegal or asserted improper, negligent or other wrongful conduct of ACE or its
employees or agents in connection with this Agreement; and (vi) any claim or
complaint by a Consumer or governmental agency against Bank or HTM or any
affiliate of Bank or HTM asserting that ACE has violated any applicable laws.
ACE shall be liable to and shall defend, indemnify and hold harmless
Block and their Affiliates and their respective officers, employees, agents and
directors from any losses, damages,
5
claims or complaints threatened against or incurred by Block or any Affiliate of
Block or their respective officers, employees, agents and directors arising out
of (i) ACE's actual or alleged failure to comply with its obligations under this
Agreement or breach of a representation, warranty or guarantee; (ii) the death
or injury to any person or the loss, destruction or damage to any property
arising out of anything done or not done by ACE in connection with the design,
manufacture or furnishing by ACE of any SSM and (iii) any actual illegal or
asserted improper, negligent or other wrongful conduct of ACE or its employees
or agents in connection with this Agreement provided that the foregoing
indemnities shall be subject to the risk sharing provisions of the License.
Block shall be liable to and shall defend, indemnify and hold harmless
Bank, HTM and their Affiliates and their respective officers, employees, agents
and directors from any losses, damages, claims or complaints threatened against
or incurred by Bank or HTM or any Affiliate of Bank or HTM or their respective
officers, employees, agents and directors arising out of (i) any claim, dispute,
complaint or setoff against Bank or HTM or any affiliate of Bank or HTM made by
a Customer with respect to anything actually or allegedly done or not done by
Block in connection with Block's obligations under this Agreement and with
respect to an actual or alleged breach of representation, warranty, and
guarantee by Block under this Agreement; (ii) any claim or complaint of a third
party against Bank or HTM or any of their affiliates arising from Block's
advertisements and promotions relating to the check cashing services under this
Agreement; (iii) any actual illegal or asserted improper, negligent or other
wrongful conduct of Block or its employees or agents in connection with any of
the transactions contemplated by this Agreement; and (iv) any claim or complaint
by a Consumer or governmental agency against Bank or HTM or any affiliate of
Bank or HTM that Block by its conduct in connection with its obligations under
this Agreement has violated any applicable laws or regulations. HTM shall
indemnify ACE, Funding and U.S. Bank National Association, as collateral agent,
against any claim or complaint related to the RAL and RAC documentation provided
that ACE and/or Block provide such documentation to Customers in exactly the
form prescribed to them by HTM, as servicer for Bank. In the event that any
party shall receive any claim or demand or be subject to any suit or proceeding
of which a claim may be made against Bank, HTM, or ACE under this Section, the
indemnified parties shall give prompt written notice thereof to the indemnifying
parties and the indemnifying parties will be entitled to participate in the
settlement or defense thereof with counsel satisfactory to indemnified parties
at the indemnifying parties' expense. In any case, the indemnifying parties and
the indemnified parties shall cooperate (at no cost to the indemnified parties)
in the settlement or defense of any such claim, demand, suit, or proceeding.
8. COMPLIANCE WITH LAWS
The Parties will perform their respective obligations under this
Agreement in compliance, in all material respects, with all applicable laws,
orders, and regulations.
9. NOTICES
Any notice, consent, or other communication to be given under this
Agreement by either Party to another Party shall be in writing and
shall be either (a) personally delivered, (b) mailed by registered or
certified mail, postage prepaid with return receipt requested, or (c)
delivered by overnight express delivery service or same-day local
courier service at such other address as may have previously been
designated by a Party for it by notice to
6
the other Parties in accordance with this Section 6. Notices delivered
personally, or by overnight express delivery service, or by local
courier service shall be deemed given as of actual receipt. Mailed
notices shall be deemed given three business days after mailing.
If to Funding: If to HTM:
ACE Funding, LLC Household Tax Masters Inc
0000 Xxxxxxxx Xxxxx, Xxxxx 000 200 Somerset Corporate Blvd.
Irving, Texas 75038 Xxxxxxxxxxx, XX 00000
Facsimile no.: 972/ 582-1425 Facsimile no.: 000-000-0000
Attn: Xxxxx Xxxxxx-Strong Attn: Xxxxx X. Xxxxxxx
Vice President
If to Funding: If to U.S. Bank, National Association
ACE Cash Express, Inc. as Collateral Agent:
0000 Xxxxxxxx Xxxxx, Xxxxx 000 000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000 Xx. Xxxx, Xxxxxxxxx 00000
Facsimile no.: 972/ 582-1464 Facsimile no.: 000-000-0000/1797
Attn: Xxx Xxxxxx, Chief Financial Officer Attn: Xxx Xxxxxx
If to Bank: If to Block:
Imperial Capital Bank 0000 Xxxx Xxxxxx
000 Xxxx Xxxxx Xxxxxx Xxxxxx Xxxx, Xxxxxxxx 00000
Xxxxxx X & X
Xxxxxx Xxxx, Xxxxxx 00000 ------------------------------
Facsimile no.: 775/ 841-4388 Facsimile no.:000-000-0000
Attention: Xxxxx X. Sundry Attn: Xx. Xxxxx Xxxxxxxx
If to Bank with a copy to:
Imperial Capital Bank
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Facsimile no.: 858/ 551-1212
Attn: Xxxxxxx X. Xxxxx
10. STATUS OF THE PARTIES
In performing their responsibilities pursuant to this Agreement, all
parties are in the position of independent contractors, and in no circumstances
shall any party be deemed to be the agent or employee of any other. This
Agreement is not intended to create, nor does it create and shall not be
construed to create, a relationship of partner or joint venture or an
association for profit between any parties. The parties hereto acknowledge and
agree that the Customer Checks cashed in the SSMs and the funds to be wired
hereunder in settlement thereof are owned by Funding (which has granted a
security interest therein to U.S. Bank, National Association, as collateral
agent) and do not belong to ACE.
7
11. FORCE MAJEURE
No party to this Agreement shall be liable to any other by reason of
any failure in performance of this Agreement in accordance with its terms if
such failure arises out of a cause beyond the control and without the fault or
negligence of such party. Such causes may include but are not limited to acts of
God, of the public enemy or of civil or military authority, unavailability of
energy resources, system or communication failure, delay in transportation,
fires, strikes, riots or war. In the event of any force majeure occurrence, the
disabled party shall use its best efforts to meet its obligations as set forth
in this Agreement.
12. GOVERNING LAW
This Agreement shall be governed by, construed in accordance with, and
enforced under the laws of the State of New York (including Sections 5-1401 and
5-1402 of the New York General Obligations Law, but otherwise without respect to
its choice of laws provisions). In the event that any provision of this
Agreement conflicts with the Uniform Commercial Code, the Uniform Commercial
Code shall control.
13. AMENDMENT: WAIVER
This Agreement may only be amended by the written consent of all
Parties and U.S. Bank National Association, as collateral agent, and any
provision hereof may be waived only by a document signed by the Party against
which the waiver is sought to be enforced.
14. HEADINGS AND CAPTIONS
Headings, captions, and titles of articles, sections, paragraphs, or
other subparts of this Electronic Presentment Agreement are for convenience of
reference only and shall be ignored in interpreting, defining or construing the
text of this Agreement.
15. JURISDICTION
ANY SUIT, COUNTERCLAIM, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT MUST BE BROUGHT SOLELY IN THE COURTS OF THE STATE OF NEW YORK
OR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW YORK; AND ALL
PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS
AND ANY APPELLATE COURTS THEREOF FOR THE PURPOSE OF ANY SUCH SUIT, COUNTERCLAIM,
ACTION, PROCEEDING OR JUDGMENT (IT BEING UNDERSTOOD THAT SUCH CONSENT TO THE
EXCLUSIVE JURISDICTION OF SUCH COURTS WAIVES ANY RIGHT TO SUBMIT ANY DISPUTES
HEREUNDER TO ANY COURTS OTHER THAN THOSE ABOVE).
16. WAIVER OF JURY TRIAL
ALL PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM
CONCERNING ANY RIGHTS UNDER
8
THIS AGREEMENT, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS
AGREEMENT, AND AGREE THAT ANY SUCH ACTION, SUIT, PROCEEDING OR COUNTERCLAIM
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY; THIS PROVISION IS A
MATERIAL INDUCEMENT FOR ALL PARTIES ENTERING INTO THIS AGREEMENT. SUCH WAIVER BY
THE PARTIES HERETO SHALL NOT ACT AS A WAIVER OF ANY SUCH RIGHTS UNDER ANY OTHER
UNRELATED AGREEMENTS OF ANY OF THE PARTIES TO THIS AGREEMENT.
17. THIRD PARTY BENEFICIARY
U.S. Bank National Association, as collateral agent, and its successors
and assigns in such capacity shall be third-party beneficiaries to the
provisions of this Agreement and shall be entitled to rely upon and directly
enforce such provisions of this Agreement.
18. MULTIPLE COUNTERPARTS
This Agreement may be executed in multiple and separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one agreement.
9
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives and effective as of the
Effective Date.
ACE FUNDING, LLC., HOUSEHOLD TAX MASTERS INC.
a Delaware limited liability company
By: By:
---------------------------------- --------------------------------
Name: Xxxxx Xxxxxx-Strong Name:
Title: Vice President -----------------------------
Title:
-----------------------------
Date: Date:
--------------------- ---------------------
IMPERIAL CAPITAL BANK H&R BLOCK TAX SERVICES, INC.
By: By:
-------------------------------- --------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
----------------------------- -----------------------------
Date: Date:
--------------------- ---------------------
ACE CASH EXPRESS, INC.,
a Texas corporation
By:
--------------------------------
Name: Xxx Xxxxxx
Title: Chief Financial Officer
Date:
---------------------
[Signature Page - Electronic Presentment Agreement]
ANNEX I
ACE FUNDING LLC
0000 XXXXXXXX XXXXX, XXXXX 000
XXXXXX, XXXXX 00000
December 18, 2002
AT SYSTEMS SOUTHWEST, INC.
000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Re: Custodial Acknowledgment in favor of the Collateral Agent (as
hereinafter defined)
Ladies and Gentlemen:
ACE FUNDING LLC, a Delaware limited liability company (the
"Borrower"), ACE CASH EXPRESS, INC., a Texas corporation, individually and as
check xxxxxx ("ACE"), AUTOBAHN FUNDING COMPANY LLC, a Delaware limited liability
company (the "Lender"), DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
FRANKFURT AM MAIN ("DZ Bank"), as administrative agent for Lender (in such
capacity, the "Administrative Agent") and as liquidity agent for Liquidity
Providers (in such capacity, the "Liquidity Agent"), and U.S. Bank National
Association, as collateral agent for the Secured Parties (as defined below) (in
such capacity, the "Collateral Agent") as parties to that certain Loan and
Servicing Agreement dated as of December 18, 2002 (as amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement")
hereby notify you ("Approved Courier") and you hereby acknowledge, that the
Borrower has assigned, pledged and granted to the Collateral Agent, for the
benefit of the Secured Parties, a first and prior security interest in certain
property of Borrower, including all currency, coin, checks, securities and other
valuable property and proceeds thereof received, transported and delivered by
you from time to time (the "Property") in accordance with the contract between
you and the Borrower (as amended and supplemented the "Contract") and pertaining
to locations of the self-service check cashing machines listed on Schedule I
attached hereto as such schedule may be amended, restated,
AT SYSTEMS SOUTHWEST, INC.
December 18, 2002
Page 2
supplemented or otherwise modified from time to time with the consent of the
Collateral Agent (the "SSMs") located in certain business premises of H&R Block
Tax Services, Inc., to secure certain obligations and indebtedness of the
Borrower owing to the "Secured Parties" as defined in the Loan Agreement.
1. Notwithstanding any provision to the contrary contained in
the Contract:
(a) Approved Courier is hereby irrevocably authorized and
directed by Borrower, upon the request of the Collateral Agent, to retrieve (if
necessary) and deliver to the Collateral Agent or its designee (as the
Collateral Agent may direct), to the applicable financial institution as
indicated on the attached Schedule I ("Approved Vault Bank") any and all
Property then and thereafter received, transported or delivered by Approved
Courier pursuant to the Contract (including, without limitation, all Property
contained in cartridges at the SSMs). All requests, instructions and notices to
be given to Approved Courier pursuant to this letter agreement by the Collateral
Agent may be oral or written (unless provided otherwise below) and shall be made
by a Vice President of the Collateral Agent and shall be delivered to Approved
Courier at the address indicated above, facsimile no. (000) 000-0000, phone no.
(000) 000-0000 extension 103 (subject to change only by prior written notice
from Approved Courier to the Borrower and the Collateral Agent as provided in
the last paragraph hereof) and to the attention of Xxxxx Xxxx. All requests,
instructions and notices shall be confirmed in writing, by telex, facsimile,
certified mail or express delivery service not later than the second business
day next following the date or time such request, instruction or notice is
effective. Approved Courier shall have a reasonable period of time (but in any
event not to exceed two business days) following the receipt of any request,
instruction or notice to comply therewith. Approved Courier accepts and agrees
to comply with the preceding authorization and direction, and with any such
request or instruction from the Collateral Agent until such time as the
Collateral Agent otherwise directs in writing, as provided above; provided, that
Approved Courier shall incur no liability whatsoever to the Borrower or the
AT SYSTEMS SOUTHWEST, INC.
December 18, 2002
Page 3
Collateral Agent in acting upon any request or instruction which Approved
Courier reasonably believes to have been given in the manner provided herein by
an authorized representative of the Collateral Agent. Instructions of the
Collateral Agent shall control, and, except as permitted by the Collateral Agent
below in this letter agreement or otherwise in writing, the Borrower shall not
have any right or authority whatsoever to instruct Approved Courier with respect
to the Property.
(b) The Collateral Agent shall pay directly to Approved
Courier all costs and expenses payable to Approved Courier pursuant to the
Contract, including any additional cost or expense which Approved Courier shall
require if Approved Courier is directed by the Collateral Agent to perform any
service additional to or different from the services specifically set forth in
the Contract to the extent funds are available in Account # 00000000 at the
Collateral Agent (the "Trust Collection Account"). To the extent the Collateral
Agent fails to pay the amounts referenced in the foregoing sentence, the
Borrower (or ACE in the event the Borrower does not have sufficient funds) will
pay such amounts. Approved Courier waives and disclaims any and all interest
(whether ownership, security or otherwise), at law or in equity, including
without limitation any right of offset or counterclaim against, or carrier's
lien in, the Property and expressly agrees that the Borrower owns the Property,
free and clear of all liens, interests, claims or other rights arising by,
through or under Approved Courier.
(c) Neither this letter agreement nor the Contract shall be
modified or amended without the prior written consent of Approved Courier, the
Borrower, the Administrative Agent, ACE and the Collateral Agent. In that
connection, it is agreed that the Contract may be amended to add thereto or to
delete therefrom the location of the SSMs by an amendment duly executed by
Approved Courier, the Collateral Agent, the Administrative Agent, ACE and the
Borrower and that the Contract as amended shall thereafter continue in full
force and effect.
AT SYSTEMS SOUTHWEST, INC.
December 18, 2002
Page 4
(d) Approved Courier hereby acknowledges that (i) the Property
is legally and equitably owned by the Borrower and is not the property of the
Approved Vault Bank, the owner of any SSM, H&R Block, ACE or any other party,
(ii) the Collateral Agent has been granted by the Borrower and currently holds a
security interest in the Property and (iii) pursuant to such grant, the
Collateral Agent has the right to exercise the rights of the Borrower under the
Contract. Approved Courier agrees and acknowledges that at all times during
which Approved Courier is in possession of Property received, transported and
delivered by Approved Courier pursuant to the Contract, Approved Courier shall
maintain possession of such Property in the capacity of a custodian and bailee
of such Property for the benefit of the Collateral Agent on behalf of the
Secured Parties for the purpose of perfecting the security interest of the
Collateral Agent pursuant to applicable provisions of the Uniform Commercial
Code or other applicable law, subject and pursuant to the provisions of the
Contract as amended from time to time and pursuant to the provisions of this
letter agreement.
(e) Approved Courier agrees to provide the Collateral Agent
with such information and records relating solely to the performance of the
Contract as the Collateral Agent may reasonably request from time to time;
provided that, Approved Courier shall furnish to the Borrower a copy of all such
information and records which are so provided to the Collateral Agent.
(f) In the event of loss of the Property, the Collateral
Agent, the Borrower or ACE (each of the Borrower and ACE as agent for the
Collateral Agent) shall have the right to present a claim to Approved Courier
for loss reimbursement in the manner specified and allowed under the terms of
the Contract. All such loss reimbursements shall be deposited directly into the
Vault Collection Account ("Vault Collection Account") designated from time to
time by the Collateral Agent at the applicable Approved Vault Bank to satisfy
any outstanding obligations under the Loan Agreement.
AT SYSTEMS SOUTHWEST, INC.
December 18, 2002
Page 5
(g) Approved Courier 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 Approved Courier's nonperformance of its
obligations set forth herein, and the Borrower agrees to pay all court costs and
reasonable attorneys' fees which Approved Courier may incur as a result of any
such dispute.
2. Until notice is given to the Approved Courier by the
Collateral Agent under Paragraph 1 above:
(a) Approved Courier shall continue, pursuant to the Contract,
to pick up sealed cartridges said or represented to contain currency at the
Approved Vault Bank for delivery to the SSMs. The sealed cartridges shall be
delivered by Approved Courier to the SSMs specifically designated in writing by
ACE, as check xxxxxx, but (notwithstanding any provision of the Contract to the
contrary) no cartridge shall be delivered to any location other than one or more
of the SSMs.
(b) Furthermore, Approved Courier shall continue to pick up
sealed cartridges said to contain all excess cash and items other than checks
and checks (unless checks are voided pursuant to the Electronic Presentment
Agreement referenced below) that are made available to Approved Courier from the
SSMs and shall deliver them to the Approved Vault Bank pursuant to the Contract.
If instructed by ACE (and approved by the Collateral Agent and the
Administrative Agent) that an Electronic Presentment Agreement has been
executed, Approved Courier shall continue to pick up all voided checks and shall
deliver them to Texas Capital Bank for safekeeping ("Texas Capital") pursuant to
the Contract.
(c) The instructions provided by ACE pursuant to this
Paragraph 2 may be revoked at any time by notice to that effect by an authorized
representative of the Collateral Agent given to Approved Courier and/or to the
attention of the Branch Manager or, in his or her absence, an Assistant Branch
Manager, of the Approved Vault Bank and any such oral notice shall be confirmed
in writing by certified mail or express delivery service not
AT SYSTEMS SOUTHWEST, INC.
December 18, 2002
Page 6
later than the business day next following the date or time such notice is
effective.
3. By accepting this letter agreement, Approved Courier
represents that the Contract is in full force and effect and that Approved
Courier will not amend the Contract in any manner except in accordance with
paragraph 1(c) hereof. Approved Courier agrees that the Contract will not be
terminated without at least ten (10) days' prior written notice to the
Collateral Agent and prior to any such termination all Property shall be
collected and delivered to the Approved Vault Bank (or, in the case of voided
checks, Texas Capital as set forth in paragraph 2(b) above).
This letter agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
Approved Courier covenants and agrees that prior to the date
which is one year and one day (or the then applicable preference period) after
the date upon which all obligations under the Loan Agreement have been paid in
full, Approved Courier will not institute against, or join any other party in
instituting against the Borrower any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law.
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 following, which are also the addresses for notice
to the Collateral Agent and the Borrower (subject to change only by prior notice
from the Collateral Agent or the Borrower to you as provided in Paragraph l(a)
hereof): US Bank, 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000 (Attention:
Structured Finance/ACE Cash Express), facsimile no. (000) 000-0000; and to the
Borrower, 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (Attention: Xxx
Xxxxxx), facsimile no. (000) 000-0000. This letter agreement may be executed in
multiple counterparts.
AT SYSTEMS SOUTHWEST, INC.
December 18, 2002
Page 7
Thank you.
Yours very truly,
ACE Funding LLC
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
AT SYSTEMS SOUTHWEST, INC.
December 18, 2002
Page 8
Approved as of the date first above written:
ACE CASH EXPRESS, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK FRANKFURT AM MAIN, as
Administrative Agent and Liquidity Agent
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Address: 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
XX BANK, N.A. as Collateral Agent
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Address: 000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
AT SYSTEMS SOUTHWEST, INC.
December 18, 2002
Page 9
Accepted and agreed to as of the date first above written:
AT SYSTEMS SOUTHWEST, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
SCHEDULE I
SSM Location Approved Vault Bank Approved Vault Bank
Contact
ANNEX VI
ACE FUNDING LLC
0000 XXXXXXXX XXXXX, XXXXX 000
XXXXXX, XXXXX 00000
December 18, 2002
XXXXXX, FARGO & CO.
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000 (if necessary) and deliver to the Collat
Attn: Xxxx Xxxxx
Re: Custodial Acknowledgment in favor of the Collateral Agent (as
hereinafter defined)
Ladies and Gentlemen:
ACE FUNDING LLC, a Delaware limited liability company (the
"Borrower"), ACE CASH EXPRESS, INC., a Texas corporation, individually and as
check xxxxxx ("ACE"), AUTOBAHN FUNDING COMPANY LLC, a Delaware limited liability
company (the "Lender"), DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
FRANKFURT AM MAIN ("DZ Bank"), as administrative agent for Lender (in such
capacity, the "Administrative Agent") and as liquidity agent for Liquidity
Providers (in such capacity, the "Liquidity Agent"), and U.S. Bank National
Association, as collateral agent for the Secured Parties (as defined below) (in
such capacity, the "Collateral Agent") as parties to that certain Loan and
Servicing Agreement dated as of December 18, 2002 (as amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement")
hereby notify you ("Approved Courier") and you hereby acknowledge, that the
Borrower has assigned, pledged and granted to the Collateral Agent, for the
benefit of the Secured Parties, a first and prior security interest in certain
property of Borrower, including all currency, coin, checks, securities and other
valuable property and proceeds thereof received, transported and delivered by
you from time to time (the "Property") in accordance with the contract between
you and the Borrower (as amended and supplemented the "Contract") and pertaining
to locations of the self-service check cashing machines listed on Schedule I
attached hereto as such schedule may be amended, restated,
XXXXXX, FARGO & CO.
December 18, 2002
Page 2
supplemented or otherwise modified from time to time with the consent of the
Collateral Agent (the "SSMs") located in certain business premises of H&R Block
Tax Services, Inc., to secure certain obligations and indebtedness of the
Borrower owing to the "Secured Parties" as defined in the Loan Agreement.
1. Notwithstanding any provision to the contrary contained in
the Contract:
(a) Approved Courier is hereby irrevocably authorized and
directed by Borrower, upon the request of the Collateral Agent, to retrieveeral
Agent or its designee (as the Collateral Agent may direct), to the applicable
financial institution as indicated on the attached Schedule I ("Approved Vault
Bank") any and all Property then and thereafter received, transported or
delivered by Approved Courier pursuant to the Contract (including, without
limitation, all Property contained in cartridges at the SSMs). All requests,
instructions and notices to be given to Approved Courier pursuant to this letter
agreement by the Collateral Agent may be oral or written (unless provided
otherwise below) and shall be made by a Vice President of the Collateral Agent
and shall be delivered to Approved Courier at the address indicated above,
facsimile no. (000) 000-0000, phone no. (000) 000-0000 (subject to change only
by prior written notice from Approved Courier to the Borrower and the Collateral
Agent as provided in the last paragraph hereof) and to the attention of Xxxx
Xxxxx, with a copy to _____________________. All requests, instructions and
notices shall be confirmed in writing, by telex, facsimile, certified mail or
express delivery service not later than the second business day next following
the date or time such request, instruction or notice is effective. Approved
Courier shall have a reasonable period of time (but in any event not to exceed
two business days) following the receipt of any request, instruction or notice
to comply therewith. Approved Courier accepts and agrees to comply with the
preceding authorization and direction, and with any such request or instruction
from the Collateral Agent until such time as the Collateral Agent otherwise
directs in writing, as provided above; provided, that Approved Courier shall
incur no liability whatsoever to the Borrower or the
XXXXXX, FARGO & CO.
December 18, 2002
Page 3
Collateral Agent in acting upon any request or instruction which Approved
Courier reasonably believes to have been given in the manner provided herein by
an authorized representative of the Collateral Agent. Instructions of the
Collateral Agent shall control, and, except as permitted by the Collateral Agent
below in this letter agreement or otherwise in writing, the Borrower shall not
have any right or authority whatsoever to instruct Approved Courier with respect
to the Property.
(b) The Collateral Agent shall pay directly to Approved
Courier all costs and expenses payable to Approved Courier pursuant to the
Contract, including any additional cost or expense which Approved Courier shall
require if Approved Courier is directed by the Collateral Agent to perform any
service additional to or different from the services specifically set forth in
the Contract to the extent funds are available in Account # 00000000 at the
Collateral Agent (the "Trust Collection Account"). To the extent the Collateral
Agent fails to pay the amounts referenced in the foregoing sentence, the
Borrower (or ACE in the event the Borrower does not have sufficient funds) will
pay such amounts. Approved Courier waives and disclaims any and all interest
(whether ownership, security or otherwise), at law or in equity, including
without limitation any right of offset or counterclaim against, or carrier's
lien in, the Property and expressly agrees that the Borrower owns the Property,
free and clear of all liens, interests, claims or other rights arising by,
through or under Approved Courier.
(c) Neither this letter agreement nor the Contract shall be
modified or amended without the prior written consent of Approved Courier, the
Borrower, the Administrative Agent, ACE and the Collateral Agent. In that
connection, it is agreed that the Contract may be amended to add thereto or to
delete therefrom the location of the SSMs by an amendment duly executed by
Approved Courier, the Collateral Agent, the Administrative Agent, ACE and the
Borrower and that the Contract as amended shall thereafter continue in full
force and effect.
XXXXXX, FARGO & CO.
December 18, 2002
Page 4
(d) Approved Courier hereby acknowledges that (i) the Property
is legally and equitably owned by the Borrower and is not the property of the
Approved Vault Bank, the owner of any SSM, H&R Block, ACE or any other party,
(ii) the Collateral Agent has been granted by the Borrower and currently holds a
security interest in the Property and (iii) pursuant to such grant, the
Collateral Agent has the right to exercise the rights of the Borrower under the
Contract. Approved Courier agrees and acknowledges that at all times during
which Approved Courier is in possession of Property received, transported and
delivered by Approved Courier pursuant to the Contract, Approved Courier shall
maintain possession of such Property in the capacity of a custodian and bailee
of such Property for the benefit of the Collateral Agent on behalf of the
Secured Parties for the purpose of perfecting the security interest of the
Collateral Agent pursuant to applicable provisions of the Uniform Commercial
Code or other applicable law, subject and pursuant to the provisions of the
Contract as amended from time to time and pursuant to the provisions of this
letter agreement.
(e) Approved Courier agrees to provide the Collateral Agent
with such information and records relating solely to the performance of the
Contract as the Collateral Agent may reasonably request from time to time;
provided that, Approved Courier shall furnish to the Borrower a copy of all such
information and records which are so provided to the Collateral Agent.
(f) In the event of loss of the Property, the Collateral
Agent, the Borrower or ACE (each of the Borrower and ACE as agent for the
Collateral Agent) shall have the right to present a claim to Approved Courier
for loss reimbursement in the manner specified and allowed under the terms of
the Contract. All such loss reimbursements shall be deposited directly into the
Vault Collection Account ("Vault Collection Account") designated from time to
time by the Collateral Agent at the applicable Approved Vault Bank to satisfy
any outstanding obligations under the Loan Agreement.
XXXXXX, FARGO & CO.
December 18, 2002
Page 5
(g) Approved Courier 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 Approved Courier's nonperformance of its
obligations set forth herein, and the Borrower agrees to pay all court costs and
reasonable attorneys' fees which Approved Courier may incur as a result of any
such dispute.
2. Until notice is given to the Approved Courier by the
Collateral Agent under Paragraph 1 above:
(a) Approved Courier shall continue, pursuant to the Contract,
to pick up sealed cartridges said or represented to contain currency at the
Approved Vault Bank for delivery to the SSMs. The sealed cartridges shall be
delivered by Approved Courier to the SSMs specifically designated in writing by
ACE, as check xxxxxx, but (notwithstanding any provision of the Contract to the
contrary) no cartridge shall be delivered to any location other than one or more
of the SSMs.
(b) Furthermore, Approved Courier shall continue to pick up
sealed cartridges said to contain all excess cash and items other than checks
and checks (unless checks are voided pursuant to the Electronic Presentment
Agreement referenced below) that are made available to Approved Courier from the
SSMs and shall deliver them to the Approved Vault Bank pursuant to the Contract.
If instructed by ACE (and approved by the Collateral Agent and the
Administrative Agent) that an Electronic Presentment Agreement has been
executed, Approved Courier shall continue to pick up all voided checks and shall
deliver them to Texas Capital Bank for safekeeping ("Texas Capital") pursuant to
the Contract.
(c) The instructions provided by ACE pursuant to this
Paragraph 2 may be revoked at any time by notice to that effect by an authorized
representative of the Collateral Agent given to Approved Courier and/or to the
attention of the Branch Manager or, in his or her absence, an Assistant Branch
Manager, of the Approved Vault Bank and any such oral notice shall be confirmed
in writing by certified mail or express delivery service not later than the
business day next following the date or time such notice is effective.
XXXXXX, FARGO & CO.
December 18, 2002
Page 6
3. By accepting this letter agreement, Approved Courier
represents that the Contract is in full force and effect and that Approved
Courier will not amend the Contract in any manner except in accordance with
paragraph 1(c) hereof. Approved Courier agrees that the Contract will not be
terminated without at least ten (10) days' prior written notice to the
Collateral Agent and prior to any such termination all Property shall be
collected and delivered to the Approved Vault Bank (or, in the case of voided
checks, Texas Capital as set forth in paragraph 2(b) above).
This letter agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
Approved Courier covenants and agrees that prior to the date
which is one year and one day (or the then applicable preference period) after
the date upon which all obligations under the Loan Agreement have been paid in
full, Approved Courier will not institute against, or join any other party in
instituting against the Borrower any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law.
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 following, which are also the addresses for notice
to the Collateral Agent and the Borrower (subject to change only by prior notice
from the Collateral Agent or the Borrower to you as provided in Paragraph l(a)
hereof): US Bank, 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000 (Attention:
Structured Finance/ACE Cash Express), facsimile no. (000) 000-0000; and to the
Borrower, 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (Attention: Xxx
Xxxxxx), facsimile no. (000) 000-0000. This letter agreement may be executed in
multiple counterparts.
XXXXXX, FARGO & CO.
December 18, 2002
Page 7
Thank you.
Yours very truly,
ACE Funding LLC
By:
--------------------------
Name:
------------------------
Title:
-----------------------
XXXXXX, FARGO & CO.
December 18, 2002
Page 8
Approved as of the date first above written:
ACE CASH EXPRESS, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK FRANKFURT AM MAIN, as
Administrative Agent and Liquidity Agent
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Address: 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
XX BANK, N.A. as Collateral Agent
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Address: 000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
XXXXXX, FARGO & CO.
December 18, 2002
Page 9
Accepted and agreed to as of the date first above written:
XXXXXX, FARGO & CO.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
SCHEDULE I
SSM Location Approved Vault Bank Approved Vault Bank
Contact
Annex VI
[U.S. Bank logo]
November 21, 2002
Xx. Xxxxxxx X. Xxxxxxx
Vice President of Finance
Ace Cash Express, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
Re: ACE CASH EXPRESS, INC. "Borrower"
FACILITY WITH AUTOBAHN FUNDING COMPANY LLC "Lender"
Dear Xx. Xxxxxxx:
Thank you for the upcoming appointment as Collateral Agent for the referenced
financing.
Further to your conversation with Xxxxxxx Xxxxxx, I have enclosed a schedule of
fees for our services. We reserve the right to amend our fees following the
review of final documents and responsibilities.
U.S. Bank is a major provider of trust services and document file custody for
issuers all over the world. Demonstrating our commitment to the business, U.S.
Bank has one of the largest corporate trust businesses in the country, with
offices in twenty-six U.S. cities. The bank's long-term rating is currently Xx0,
Xx, XX- from Xxxxx'x Investors Service, Standard & Poor's and Fitch IBCA,
respectively. U.S. Bank's balance sheet reflects $173 billion in assets and is
currently ranked as the eighth largest bank holding company in the United
States.
Bear in mind that U.S. Bank can offer:
o efficiency with funds movement due to our current role as
issuing and paying agent on Autobahn Funding LLC
o experience on over 925 current mortgage and asset-backed
appointments with aggregate outstandings in excess of $300
billion
o top five ranking in the year 2001 in aggregate dollar volume
of new public asset-backed trusteeships according to Thomson
Financial Securities Data
o Delaware office qualifying U.S. Bank as a Delaware Owner
Trustee
Ace cash Express, Inc.
Page 2
o one of the most experienced corporate trust
asset/mortgage-backed administrative teams in the industry
o resources and commitment to meet expected financing deadlines
o internet access to complete account information including
asset positions, account balances, trade settlement activity
and historical transaction data
Please feel free to call me at (000) 000-0000 if you should have any questions.
We look forward to working with you on this opportunity and expanding your
relationship with U.S. Bank.
Sincerely,
Xxxxxx X. Xxxxxxxxx
Senior Vice President
Enclosure(s)
cc: Xxxxxxx Xxxxxx
DZ Bank
Xxxx Xxxxx
DZ Bank
U.S. BANK NATIONAL ASSOCIATION
SCHEDULE OF FEES
FOR SERVICES AS
COLLATERAL AGENT
FOR
ACE CASH EXPRESS, INC. "BORROWER"
FACILITY WITH AUTOBAHN FUNDING LLC "LENDER"
INITIAL ACCEPTANCE FEE: $*
The acceptance fee includes the review and execution of the documents related to
the transaction and initial set-up of the account. Payable at the closing.
MONTHLY ADMINISTRATION FEE (JANUARY 15, 2003 - APRIL 15, 2003): $*
The fee includes the Collateral Agent's duties as outlined in the governing
documents. The administration fee assumes that the trust accounts will be
invested in our automated sweep vehicles that are rated Aaa, AAAm by Xxxxx'x
Investors Service and Standard & Poor's Corporation, respectively. Payable
monthly from the transaction cash distributions for the four-month term.
OUT-OF-POCKET EXPENSES: $*
Includes all related expenses, including but not limited to: postage, travel,
counsel fees and their disbursements. Attorney's fees for review of the
transaction will not exceed $6,000.00 barring unforeseen complications in the
closing. U.S. Bank will use Xxxxxx & Xxxxxxx as Collateral Agent's counsel.
Final account acceptance is subject to review of documents. Fees are based on
our understanding of the transaction and are subject to revision if the
structure is changed. In the event that this transaction does not close, any
related out-of-pocket expenses we incur will be billed to you at cost.
DATED: November 21, 2002
----------
* 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.
U.S. BANK NATIONAL ASSOCIATION
CONTACT LIST
FOR
ACE CASH EXPRESS, INC. "BORROWER"
FACILITY WITH AUTOBAHN FUNDING LLC "LENDER"
U.S. Bank National Association Account Xxx Xxxxxx
000 Xxxx Xxxxx Xxxxxx Manager: Vice President
Xx. Xxxx, XX 00000 Tel: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxx.xxxxxx@xxxxxx.xxx
Xxxx Xxxxxxxxx
Assistant Vice President
Tel: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxx.xxxxxxxxx@xxxxxx.xxx
Xxxxxx & Whitney Counsel: Xxxxxxx Xxxxxxxx, Esq.
00 Xxxxx Xxxxx Xxxxxx Tel: (000) 000-0000
Suite 1500 Fax: (612) 340-8738
Minneapolis, MN 55402-1498 E-Mail: reeslund.mike@dorseylaw.com
U.S. Bank National Association Business Edward Kachinski
100 Wall Street Development: Senior Vice President
16th Floor Tel: (212) 361-2548
New York, NY 10005 Fax: (212) 514-6841
E-Mail: Edward.kachinski@usbank.com
