Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"),
dated as of June 30, 2003, is entered into among ACE CASH EXPRESS, INC., a Texas
corporation (the "Borrower"), the lenders listed on the signature pages hereof
as Lenders (the "Lenders"), XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION, as
Administrative Agent and Issuing Bank, JPMORGAN CHASE BANK as Agent, BANK OF
AMERICA, N.A., as Syndication Agent, and U.S. BANK NATIONAL ASSOCIATION, as
Documentation Agent.
BACKGROUND
1. The Borrower, certain of the Lenders, the Agent, the
Documentation Agent, the Syndication Agent and the Administrative Agent are
parties to that certain Credit Agreement, dated as of March 31, 2003, (the
"Credit Agreement"). The terms defined in the Credit Agreement and not otherwise
defined herein shall be used herein as defined in the Credit Agreement.
2. The Borrower has requested certain amendments to the Credit
Agreement.
3. The Lenders, the Documentation Agent, the Syndication Agent,
the Agent and the Administrative Agent hereby agree to amend the Credit
Agreement, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, the Documentation Agent, the Syndication Agent, the Agent and the
Administrative Agent covenant and agree as follows:
Section 1. AMENDMENT. Section 6.20 of the Credit Agreement is hereby
amended to read as follows:
SECTION 6.20. Deposit Accounts and Armored Couriers. Borrower
shall not, at any time after August 31, 2003, permit (i) more
than 5% of the aggregate amount of Borrower's Cash Holdings
and each Subsidiary's Cash Holdings held in deposit accounts
to be held in Deposit Accounts maintained by financial
institutions with which there is no Letter Agreement and (ii)
more than 5% of the aggregate dollar amount of Borrower's Cash
Holdings and instruments and each Subsidiary's Cash Holdings
and instruments to be transported by armored couriers with
which there is no Letter Agreement.
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Section 2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By
its execution and delivery hereof, the Borrower represents and warrants that, as
of the date hereof:
(a) the representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct on and as of the
date hereof as made on and as of such date;
(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default;
(c) (i) the Borrower has full power and authority to execute and
deliver this First Amendment, (ii) this First Amendment has been duly executed
and delivered by the Borrower, and (iii) this First Amendment and the Credit
Agreement, as amended hereby, constitute the legal, valid and binding
obligations of the Borrower, enforceable in accordance with their respective
terms, except as enforceability may be limited by applicable debtor relief laws
and by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and except as rights to indemnity may be
limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this First
Amendment or the Credit Agreement, as amended hereby, nor the consummation of
any transactions contemplated herein or therein, will conflict with (i) the
certificate or articles of incorporation or the applicable constituent documents
or bylaws of the Borrower or its Subsidiaries, (ii) to Borrower's knowledge, any
provision or law, statute, rule or regulation applicable to the Borrower or its
Subsidiaries or (iii) any indenture, agreement or other instrument to which the
Borrower, the Subsidiaries or any of their properties are subject; and
(e) no authorization, approval, consent, or other action by,
notice to, or filing with, any governmental authority or other Person not
previously obtained is required for (i) the execution, delivery or performance
by the Borrower of this First Amendment or (ii) the acknowledgement by each
Guarantor of this First Amendment.
Section 3. CONDITIONS TO EFFECTIVENESS. This First Amendment shall be
effective upon satisfaction or completion of the following:
(a) the Administrative Agent shall have received counterparts of
this First Amendment executed by the Required Lenders;
(b) the Administrative Agent shall have received counterparts of
this First Amendment executed by the Borrower and acknowledged by each
Guarantor;
(c) the Administrative Agent shall have received a certified
resolution of the Board of Directors of the Borrower authorizing the execution,
delivery and performance of this First Amendment; and
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(d) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent and its counsel, such other
documents, certificates and instruments as the Administrative Agent shall
require.
Section 4. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", or words of like
import shall mean and be a reference to the Credit Agreement, as affected and
amended hereby.
(b) The Credit Agreement, as amended by the amendments referred to
above, shall remain in full force and effect and is hereby ratified and
confirmed.
Section 5. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this First Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto).
Section 6. GUARANTOR'S ACKNOWLEDGMENT. By signing below, each Guarantor
(a) acknowledges, consents and agrees to the execution, delivery and performance
by the Borrower of this First Amendment, (b) acknowledges and agrees that its
obligations in respect of its Guaranty Agreement (i) are not released,
diminished, waived, modified, impaired or affected in any manner by this First
Amendment or any of the provisions contemplated herein, (c) ratifies and
confirms its obligations under its Guaranty Agreement, and (d) acknowledges and
agrees that it has no claims or offsets against, or defenses or counterclaims
to, its Guaranty Agreement.
Section 7. EXECUTION IN COUNTERPARTS. This First Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same instrument. For purposes of this First Amendment, a
counterpart hereof (or signature page thereto) signed and transmitted by any
Person party hereto to the Administrative Agent (or its counsel) by facsimile
machine, telecopier or electronic mail is to be treated as an original. The
signature of such Person thereon, for purposes hereof, is to be considered as an
original signature, and the counterpart (or signature page thereto) so
transmitted is to be considered to have the same binding effect as an original
signature on an original document.
Section 8. GOVERNING LAW; BINDING EFFECT. This First Amendment shall be
shall be construed in accordance with and governed by the law of the State of
Texas; provided, that the Administrative Agent, the Agent, and each Lender shall
retain all rights arising under federal law, and shall be binding upon the
parties hereto and their respective successors and assigns.
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Section 9. HEADINGS. Section headings in this First Amendment are
included herein for convenience of reference only and shall not constitute a
part of this First Amendment for any other purpose.
Section 10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
FIRST AMENDMENT, AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, this First Amendment is executed as of the date
first set forth above.
ACE CASH EXPRESS, INC., as Borrower
By: /s/ XXXX XXXXXXX
-----------------------
Name: Xxxx Xxxxxxx
Title: VP Finance & Interim CFO
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as Administrative Agent, Issuing
Bank, and as a Lender
By: /s/ XXXXXXXXX X. XXXXX
------------------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Assistant Vice President
JPMORGAN CHASE BANK, as Agent and as a Lender
By: /s/ D. XXXXX XXXXXX
---------------------------------
Name: D. Xxxxx Xxxxxx
Title: Senior Vice President
BANK OF AMERICA STRATEGIC
SOLUTIONS, INC., as a Lender
By: /s/ XXXXXXX HONEY
----------------------------------
Name: Xxxxxxx Honey
Title: Vice President
US BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ XXXXXX X. XXXXXX, XX.
----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
FIRST AMERICAN BANK, SSB, as a Lender
By: /s/ XXXXX XXXXX
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
SOUTHWEST BANK OF TEXAS, N.A., as a Lender
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
TEXAS CAPITAL BANK, NATIONAL ASSOCIATION, as a Lender
By: __________________________________
Name:
Title:
NATIONAL CITY BANK, as a Lender
By: __________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender
By: __________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
CHECK EXPRESS, INC.
Q. C. & G. FINANCIAL, INC.
PUBLIC CURRENCY, INC.
CHECK EXPRESS FLORIDA, INC.
CHECK EXPRESS FINANCE, INC.
CHECK-X-CHANGE CORPORATION
CHECK EXPRESS SOUTH CAROLINA, INC.
CHECK EXPRESS USA, INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Vice President
