EXHIBIT 10.12
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of November 15, 1996
among
DOLLAR FINANCIAL GROUP, INC.,
as the Borrower,
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as Lenders,
LEHMAN COMMERCIAL PAPER, INC.,
as Documentation Agent for the Lenders,
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent for the Lenders
TABLE OF CONTENTS
PAGE
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . 2
1.2. Use of Defined Terms . . . . . . . . . . . . . . . . . 28
1.3. Cross-References . . . . . . . . . . . . . . . . . . . 28
1.4. Accounting and Financial Determinations . . . . . . . . 28
ARTICLE II.
COMMITMENTS, BORROWING PROCEDURES,
LETTERS OF CREDIT AND NOTES
2.1. Commitments . . . . . . . . . . . . . . . . . . . . . . 29
2.2. Lenders Not Permitted or Required to Make Loans . . . . 29
2.3. Issuer Not Permitted or Required to Issue Letters
of Credit . . . . . . . . . . . . . . . . . . . . . . . 29
2.4. Reduction of Commitment Amount . . . . . . . . . . . . 30
2.5. Borrowing Procedure . . . . . . . . . . . . . . . . . . 30
2.6. Continuation and Conversion Elections . . . . . . . . . 31
2.7. Funding . . . . . . . . . . . . . . . . . . . . . . . . 32
2.8. Issuance Procedures. . . . . . . . . . . . . . . . . . 32
2.8.1. Other Lenders' Participation . . . . . . . . . 32
2.8.2. Disbursements . . . . . . . . . . . . . . . . 33
2.8.3. Reimbursement . . . . . . . . . . . . . . . . 33
2.8.4. Deemed Disbursements . . . . . . . . . . . . . 34
2.8.5. Nature of Reimbursement Obligations . . . . . 35
2.9. Notes . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE III.
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments . . . . . . . . . . . . . . 36
3.1.1. Voluntary Prepayments . . . . . . . . . . . . 36
3.1.2. Mandatory Prepayments . . . . . . . . . . . . 37
3.2. Interest Provisions . . . . . . . . . . . . . . . . . . 38
3.2.1. Rates . . . . . . . . . . . . . . . . . . . . 38
3.2.2. Post-Maturity Rates . . . . . . . . . . . . . 39
3.2.3. Payment Dates . . . . . . . . . . . . . . . . 39
3.3. Fees . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.3.1. Letter of Credit Fees . . . . . . . . . . . . 40
3.3.2. Non-Use Fee . . . . . . . . . . . . . . . . . 40
TABLE OF CONTENTS
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(continued)
Page
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ARTICLE IV.
EURODOLLAR RATE AND OTHER PROVISIONS
4.1. Eurodollar Rate Lending Unlawful . . . . . . . . . . . 41
4.2. Deposits Unavailable . . . . . . . . . . . . . . . . . 41
4.3. Increased Eurodollar Rate Loan Costs, etc. . . . . . . 42
4.4. Funding Losses . . . . . . . . . . . . . . . . . . . . 42
4.5. Increased Capital Costs . . . . . . . . . . . . . . . . 43
4.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.7. Payments, Computations, etc. . . . . . . . . . . . . . 44
4.8. Sharing of Payments . . . . . . . . . . . . . . . . . . 45
4.9. Setoff . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE V.
CONDITIONS PRECEDENT
5.1. Restatement Date . . . . . . . . . . . . . . . . . . . 46
5.1.1. Resolutions, etc. . . . . . . . . . . . . . . 47
5.1.2. Delivery of Notes . . . . . . . . . . . . . . 47
5.1.3. No Material Adverse Change . . . . . . . . . . 47
5.1.4. Restatement Date Certificate . . . . . . . . . 47
5.1.5. Financial Information, etc. . . . . . . . . . 48
5.1.6. Opinions of Counsel . . . . . . . . . . . . . 48
5.1.7. Obligors . . . . . . . . . . . . . . . . . . . 48
5.1.8. Solvency, etc. . . . . . . . . . . . . . . . . 49
5.1.9. Fees and Expenses . . . . . . . . . . . . . . 49
5.1.10. Senior Notes Indenture and Registration
Rights Agreement . . . . . . . . . . . . . . . 49
5.1.11. Existing Credit Agreement . . . . . . . . . . 49
5.1.12. Senior Notes . . . . . . . . . . . . . . . . . 49
5.1.13. Proposed Acquisitions . . . . . . . . . . . . 49
5.2. All Credit Extensions . . . . . . . . . . . . . . . . . 49
5.2.1. Compliance with Warranties, No Default, etc. 49
5.2.2. Credit Request . . . . . . . . . . . . . . . . 50
5.2.3. Satisfactory Legal Form . . . . . . . . . . . 51
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc. . . . . . . . . . . . . . . . . . . 51
6.2. Due Authorization, Non-Contravention, etc. . . . . . . 51
6.3. Government Approval, Regulation, etc. . . . . . . . . . 52
6.4. Validity, etc. . . . . . . . . . . . . . . . . . . . . 52
6.5. Financial Information . . . . . . . . . . . . . . . . . 52
6.6. No Material Adverse Change . . . . . . . . . . . . . . 53
TABLE OF CONTENTS
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(continued)
Page
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6.7. Litigation, Labor Controversies, etc. . . . . . . . . . 53
6.8. Subsidiaries . . . . . . . . . . . . . . . . . . . . . 53
6.9. Ownership of Properties . . . . . . . . . . . . . . . . 53
6.10. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.11. Pension and Welfare Plans . . . . . . . . . . . . . . . 54
6.12. Environmental Warranties . . . . . . . . . . . . . . . 54
6.13. Regulations G, T, U and X . . . . . . . . . . . . . . . 56
6.14. Accuracy of Information . . . . . . . . . . . . . . . . 56
6.15. Consumer Credit . . . . . . . . . . . . . . . . . . . . 56
6.16. Compliance with Laws . . . . . . . . . . . . . . . . . 57
6.17. Solvency . . . . . . . . . . . . . . . . . . . . . . . 57
6.18. Borrowing Base . . . . . . . . . . . . . . . . . . . . 57
ARTICLE VII.
COVENANTS
7.1. Affirmative Covenants . . . . . . . . . . . . . . . . . 57
7.1.1. Financial Information, Reports, Notices,
etc. . . . . . . . . . . . . . . . . . . . . . 57
7.1.2. Compliance with Laws, etc. . . . . . . . . . . 60
7.1.3. Maintenance of Properties . . . . . . . . . . 60
7.1.4. Insurance . . . . . . . . . . . . . . . . . . 61
7.1.5. Books and Records . . . . . . . . . . . . . . 61
7.1.6. Environmental Covenant . . . . . . . . . . . . 61
7.1.7. Future Subsidiaries . . . . . . . . . . . . . 62
7.1.8. Use of Proceeds . . . . . . . . . . . . . . . 64
7.2. Negative Covenants . . . . . . . . . . . . . . . . . . 64
7.2.1. Business Activities . . . . . . . . . . . . . 64
7.2.2. Indebtedness . . . . . . . . . . . . . . . . . 65
7.2.3. Liens . . . . . . . . . . . . . . . . . . . . 66
7.2.4. Financial Condition . . . . . . . . . . . . . 67
7.2.5. Investments . . . . . . . . . . . . . . . . . 68
7.2.6. Restricted Payments, etc. . . . . . . . . . . 69
7.2.7. Capital Expenditures, etc. . . . . . . . . . . 69
7.2.8. Take or Pay Contracts . . . . . . . . . . . . 70
7.2.9. Consolidation, Merger, etc. . . . . . . . . . 70
7.2.10. Asset Dispositions, etc. . . . . . . . . . . . 73
7.2.11. Modification of Certain Agreements . . . . . . 73
7.2.12. Transactions with Affiliates . . . . . . . . . 73
7.2.13. Negative Pledges, Restrictive Agreements,
etc. . . . . . . . . . . . . . . . . . . . . . 74
7.2.14. Limitation on Issuance of Guaranty
Obligations . . . . . . . . . . . . . . . . . 74
TABLE OF CONTENTS
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(continued)
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ARTICLE VIII.
EVENTS OF DEFAULT
8.1. Listing of Events of Default . . . . . . . . . . . . . 75
8.1.1. Non-Payment of Obligations . . . . . . . . . . 75
8.1.2. Breach of Warranty . . . . . . . . . . . . . . 75
8.1.3. Non-Performance of Certain Covenants and
Obligations . . . . . . . . . . . . . . . . . 76
8.1.4. Non-Performance of Other Covenants and
Obligations . . . . . . . . . . . . . . . . . 76
8.1.5. Default on Other Indebtedness . . . . . . . . 76
8.1.6. Judgments . . . . . . . . . . . . . . . . . . 76
8.1.7. Pension Plans . . . . . . . . . . . . . . . . 77
8.1.8. Control of the Borrower . . . . . . . . . . . 77
8.1.9. Bankruptcy, Insolvency, etc. . . . . . . . . . 77
8.1.10. Impairment of Security, etc. . . . . . . . . . 78
8.1.11. Rubin Litigation . . . . . . . . . . . . . . . 78
8.1.12. Registration Rights Agreement . . . . . . . . 78
8.2. Action if Bankruptcy . . . . . . . . . . . . . . . . . 78
8.3. Action if Other Event of Default . . . . . . . . . . . 79
ARTICLE IX.
THE AGENTS
9.1. Appointment and Authorization . . . . . . . . . . . . . 79
9.2. Delegation of Duties . . . . . . . . . . . . . . . . . 80
9.3. Liability of Administrative Agent . . . . . . . . . . . 80
9.4. Reliance by Administrative Agent . . . . . . . . . . . 81
9.5. Notice of Default . . . . . . . . . . . . . . . . . . . 81
9.6. Credit Decision . . . . . . . . . . . . . . . . . . . . 82
9.7. Indemnification . . . . . . . . . . . . . . . . . . . . 83
9.8. Administrative Agent in Individual Capacity . . . . . . 84
9.9. Successor Administrative Agent . . . . . . . . . . . . 84
9.10. Withholding Tax . . . . . . . . . . . . . . . . . . . . 85
9.11. Collateral Matters . . . . . . . . . . . . . . . . . . 87
ARTICLE X.
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc. . . . . . . . . . . . . . . . 88
10.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . 89
10.3. Payment of Costs and Expenses . . . . . . . . . . . . . 89
10.4. Indemnification . . . . . . . . . . . . . . . . . . . . 90
10.5. Survival . . . . . . . . . . . . . . . . . . . . . . . 92
10.6. Severability . . . . . . . . . . . . . . . . . . . . . 92
10.7. Headings . . . . . . . . . . . . . . . . . . . . . . . 92
TABLE OF CONTENTS
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(continued)
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10.8. Execution in Counterparts, Effectiveness, etc.. . . . . 92
10.9. Governing Law; Entire Agreement . . . . . . . . . . . . 92
10.10. Successors and Assigns . . . . . . . . . . . . . . . . 93
10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes . . . . . . . . . . . . . . . . . . . . 93
10.11.1. Assignments . . . . . . . . . . . . . . . . . 93
10.11.2. Participations . . . . . . . . . . . . . . . . 95
10.12. Other Transactions . . . . . . . . . . . . . . . . . . 96
10.13. Forum Selection and Consent to Jurisdiction . . . . . . 96
10.14. Waiver of Jury Trial . . . . . . . . . . . . . . . . . 97
Schedule 1.1 - Commitments and Percentages of Lenders
SCHEDULE I - Disclosure Schedule
EXHIBIT A - Form of Revolving Note
EXHIBIT B - Form of Borrowing Base Certificate
EXHIBIT C - Form of Officer Solvency Certificate
EXHIBIT D - Form of Reaffirmation of Loan Documents
EXHIBIT E - Form of Borrowing Request
EXHIBIT F - Form of Continuation/Conversion Notice
EXHIBIT G-1 - Form of Opinion of Weil, Gotshal & Manges LLP
EXHIBIT G-2 - Form of Opinion of Jodi Mignatti, Esq.
EXHIBIT H - Form of Lender Assignment Agreement
EXHIBIT I - Form of Compliance Certificate
EXHIBIT J - Form of Restatement Date Certificate
EXHIBIT K - Subsidiary Guaranty
EXHIBIT L-1 - Borrower Pledge Agreement
EXHIBIT L-2 - Holdings Guaranty and Pledge Agreement
EXHIBIT M-1 - Borrower Security Agreement
EXHIBIT M-2 - Subsidiary Security Agreement
EXHIBIT N - Amended and Restated Cash Field Warehousing
Agreement
EXHIBIT O - Amended and Restated Funds Transfer and Indemnity
Agreement
EXHIBIT P - Form of Issuance Request
EXHIBIT Q - Form of Acquisition Certificate
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
November 15, 1996, among DOLLAR FINANCIAL GROUP, INC., a New York
corporation formerly known as Monetary Management Corporation (the
"Borrower"), BANK OF AMERICA ILLINOIS, LEHMAN COMMERCIAL PAPER, INC.
--------
and THE FIRST NATIONAL BANK OF MARYLAND and the various other
financial institutions as may become parties hereto (collectively, the
"Lenders"), LEHMAN COMMERCIAL PAPER, INC., as documentation agent for
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the Lenders (the "Documentation Agent"), and BANK OF AMERICA NATIONAL
-------------------
TRUST AND SAVINGS ASSOCIATION, a national banking association
("BofA"), as administrative agent (the "Administrative Agent"), for
---- --------------------
the Lenders,
W I T N E S S E T H:
WHEREAS, the Borrower, a wholly-owned direct Subsidiary of DFG
Holdings, Inc., a Delaware corporation formerly known as Monetary
Management Holdings, Inc. ("Holdings"), is engaged directly, through
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its various Subsidiaries and through its minority ownership interest
in various other Persons in the business of operating check cashing
stores, distributing public assistance benefits, selling money orders,
providing short-term consumer loans, providing bill payment services
and processing income tax refunds and franchising stores which perform
these services (collectively, the "Check Cashing Business");
----------------------
WHEREAS, on August 8, 1996, the Borrower, the Administrative
Agent and certain Lenders entered into a Credit Agreement (such Credit
Agreement, as amended to the date hereof, being herein referred to as
the "Existing Credit Agreement") pursuant to which certain Lenders
-------------------------
have made revolving loans and term loans to the Borrower;
WHEREAS, the Borrower, the Administrative Agent and the
Lenders desire that the Existing Credit Agreement be amended and
restated on the terms and conditions set forth herein to, among other
things, set forth the terms and conditions under which the Lenders
hereafter will extend Loans to the Borrower; it being the intention of
the Borrower, the Administrative Agent and the Lenders that this
Agreement and the execution and delivery of any substituted promissory
notes not effect a novation of the obligations of the Borrower to the
Lenders under the Existing Credit Agreement but merely a restatement
and, where applicable, a substitution of the terms governing and
evidencing such obligations hereafter;
WHEREAS, in order to provide financing for the working capital
requirements of the Borrower and its Subsidiaries the Borrower desires
to obtain from the Lenders, and the Lenders are willing to extend, on
the terms and subject to the conditions hereinafter set forth
(including Article V), financing to the Borrower on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the Existing Credit Agreement is hereby
amended and restated in its entirety, and the parties hereto agree, as
follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or
-------------
not underscored) when used in this Agreement, including its preamble
and recitals, shall, except where the context otherwise requires, have
the following meanings (such meanings to be equally applicable to the
singular and plural forms thereof):
"ABC" means ABC Check Cashing, Inc., an Arizona corporation.
---
"Account Receivable" means any right to payment for goods sold
------------------
or leased or services rendered, whether or not evidenced by an
instrument or chattel paper, whether or not it has been earned by
performance.
"Acquisition Capital Expenditures" means the aggregate amount
--------------------------------
of all expenditures of the Borrower and its Subsidiaries for fixed or
capital assets of ABC, Any-Kind or any Acquisition Prospect acquired
in a Permitted Acquisition, together with related expenditures for
capital improvements, in connection with the acquisition thereof made
on or a date reasonably near to (but in any event not later than
twelve months after) the date of such acquisition, as detailed in the
Acquisition Certificate related thereto or in the Acquisition Notice
(under and as defined in the Existing Credit Agreement) related
thereto (with respect to the acquisitions of ABC and Any-Kind).
"Acquisition Certificate" is defined in Section 7.2.9(c).
-----------------------
"Acquisition Date" means the Business Day on which a Permitted
----------------
Acquisition is consummated in accordance with Section 7.2.9(c).
"Acquisition Prospect" means each Person whose stock or assets
--------------------
is intended to be acquired in a Permitted Acquisition including, in
each case, the assets and the liabilities thereof.
"Adjusted EBITDA" means, with respect to an Acquisition
---------------
Prospect for any period, an amount equal to the sum of
(a) EBITDA of such Acquisition Prospect for such period
plus
(b) to the extent approved in writing by the Required
Lenders, the result (which may be a negative number) of the
calculation set forth below:
(i) the amount for such period of all remuneration
paid and the value of other benefits provided to (x) an
Affiliate that controls such Acquisition Prospect or (y)
to the extent in excess of reasonable compensation and
benefits to other officers of the Acquisition Prospect or
any Affiliate thereof, in such case, to the extent that
such Person shall cease to be employed by the Acquisition
Prospect following the consummation of the Permitted
Acquisition
minus
(ii) the aggregate amount of all remuneration to be
paid and the value of other benefits provided for the
four Fiscal Quarter period commencing after the
consummation of the Permitted Acquisition to officers and
other management employed from or after the consummation
of the Permitted Acquisition to replace Persons
terminated as described in clause (b)(i) above
minus
(iii) all items of capitalized expense which, as a
result of the Permitted Acquisition, would be
recharacterized as expenses
plus
(iv) all items of expense of the Acquisition
Prospect for such period which would be
recharacterized as capitalized expenses as a result of
such Permitted Acquisition
plus or minus
(v) the amount for such period of general services
and administrative services provided to such Acquisition
Prospect prior to the prospective Permitted Acquisition
by an Affiliate to the extent that the value of such
services was greater or less than the value of such
services if such services were provided on an "arm's-
length basis" by a non-Affiliate of the Acquisition
Prospect.
"Administrative Agent" is defined in the preamble and includes
--------------------
each other Person as shall have subsequently been appointed as the
successor Administrative Agent pursuant to Section 9.9.
"Affiliate" of any Person means any other Person which,
---------
directly or indirectly, controls, is controlled by or is under common
control with such Person (excluding any trustee under, or any
committee with responsibility for administering, any Plan). A Person
shall be deemed to be "controlled by" any other Person if such other
Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election
of directors or managing general partners; or
(b) to direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Agent-Related Persons" means BofA and any successor
---------------------
administrative agent arising under Section 9.9, BAI and any successor
Issuer, together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agreement" means, on any date, this Credit Agreement as
---------
originally in effect on the Restatement Date and as thereafter from
time to time amended, supplemented, amended and restated, or otherwise
modified and in effect on such date.
"Alternate Reference Rate" means, for any day, the higher of:
------------------------
(a) 0.50% per annum above the latest Federal Funds Rate; and (b) the
rate of interest in effect for such day as publicly
announced from time to time by BofA in San Francisco, California, as
its "reference rate." (The "reference rate" is a rate set by BofA
based upon various factors, including BofA's costs and desired return,
general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above,
or below such announced rate.) Any change in the reference rate
announced by BofA shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Any-Kind" means Any-Kind Check Cashing Centers, Inc., an
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Arizona corporation, and U.S. Check Exchange Limited Partnership, an
Arizona limited partnership.
"Applicable Disposition Proceeds" means the aggregate Net
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Disposition Proceeds from any sale or disposition of assets of the
Borrower or any of its Subsidiaries to the extent that the amount of
all such Net Disposition Proceeds during the term of this Agreement
exceeds $1,500,000; provided that to the extent that the total amount
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of Net Disposition Proceeds received by the Borrower and its
Subsidiaries during the term of this Agreement is greater than
$1,500,000 but does not exceed $3,000,000, such Net Disposition
Proceeds shall not constitute Applicable Disposition Proceeds to the
extent that such Net Disposition Proceeds are reinvested by the
Company or a Subsidiary within one year after receipt thereof to
purchase assets (other than in the ordinary course of business)
related to the Check Cashing Business, but, if not so reinvested
within such period, shall be deemed to constitute Applicable
Disposition Proceeds received on the last day of such period.
"Assignee Lender" is defined in Section 10.11.1.
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"Authorized Officer" means, relative to any Obligor, those of
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its officers whose signatures and incumbency shall have been certified
to the Administrative Agent and the Lenders pursuant to Section 5.1.1
or otherwise in a manner satisfactory to the Administrative Agent.
"BAI" means Bank of America Illinois, an Illinois banking
---
corporation formerly known as Continental Bank.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
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1978 (11 U.S.C. ss. 101, et seq.).
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"Blocked Account" has the meaning assigned to that term in the
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Subsidiary Security Agreement.
"Blocked Account Letter" has the meaning assigned to that term
----------------------
in the Subsidiary Security Agreement.
"BofA" is defined in the preamble.
----
"Borrower" is defined in the preamble.
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"Borrower Pledge Agreement" means the Pledge Agreement
-------------------------
(Borrower and Subsidiaries) executed and delivered pursuant to the
Original Credit Agreement as heretofore amended and as hereafter
amended, supplemented, restated or otherwise modified from time to
time; a conformed composite copy of the Borrower Pledge Agreement as
in effect on the date hereof is attached hereto as Exhibit L-1.
"Borrower Security Agreement" means the Security Agreement
---------------------------
executed and delivered pursuant to the Original Credit Agreement as
heretofore amended and as hereafter amended, supplemented, restated or
otherwise modified from time to time; a conformed composite copy of
the Borrower Security Agreement as in effect on the date hereof is
attached hereto as Exhibit M-1.
"Borrowing" means Loans of the same type and, in the case of
---------
Eurodollar Rate Loans, having the same Interest Period made by all
Lenders on the same Business Day and pursuant to the same Borrowing
Request in accordance with Section 2.1.
"Borrowing Base" means, at any time, an amount equal to the
--------------
sum of the following:
(i) 90% of the amount of cash of the Borrower and its
Subsidiaries held at the close of business on the immediately
preceding day in store safes subject to the Cash Field
Warehousing Agreement;
(ii) 100% of the amount of all balances of the Borrower
and its Subsidiaries held, at such time, in bank accounts
subject to Blocked Account Letters (net of ACH transfers out
of such accounts) (provided, that no Blocked Account Letters
--------
shall be required for the first 90 days following the
Restatement Date with respect to bank accounts maintained at
Wells Fargo, Society Bank or Banc One Arizona);
(iii) 90% of the amount of all checks of the Borrower and
its Subsidiaries held at the close of business on the
immediately preceding day in store safes to be deposited in
bank accounts subject to Blocked
Account Letters (provided that no Blocked Account Letters
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shall be required for the first 90 days following the
Restatement Date with respect to bank accounts maintained at
Wells Fargo, Society Bank or Banc One Arizona) or in the Cash
Concentration Account via ACH, subject to the Cash Field
Warehousing Agreement;
(iv) 90% of the amount of (a) all ACH transfers
initiated the immediately preceding Business Day from the Cash
Concentration Account and (b) transfers of same day funds
initiated on the date of calculation from the Borrower's
demand deposit account with BAI to be credited to bank
accounts subject to Blocked Account Letters (provided, that no
--------
Blocked Account Letters shall be required for the first 90
days following the Restatement Date with respect to bank
accounts maintained at Wells Fargo, Society Bank or Banc One
Arizona);
(v) 100% of the cash and checks at such time of the
Borrower and its Subsidiaries held at those armored car
carriers that have executed letters in form and substance
satisfactory to the Administrative Agent acknowledging that
they hold such cash and checks as bailee for the Borrower or
the applicable Subsidiary (provided, that no such letters
--------
shall be required for the first 90 days following the
Restatement Date);
(vi) 85% of the face amount of all Eligible Government
Receivables of the Borrower or any of its Subsidiaries at such
time; and
(vii) 100% of the amount of all cash balances of the
Borrower or any of its Subsidiaries held at such time in bank
accounts and/or investment accounts pledged to the
Administrative Agent pursuant to pledge agreements in form and
substance satisfactory to it.
"Borrowing Base Certificate" shall mean a Borrowing Base
--------------------------
Certificate in the form of Exhibit B duly executed by an Authorized
Officer of the Borrower.
"Borrowing Request" means a loan request and certificate duly
-----------------
executed by an Authorized Officer of the Borrower, substantially in
the form of Exhibit E hereto.
"Business Day" means:
------------
(i) in the case of a Business Day which relates to a
Eurodollar Rate Loan, any day of the year on which banks are
open for business in Chicago, Illinois, and San Francisco,
California, and on which dealings are carried on in the
interbank eurodollar market; and
(ii) in all other cases, any day of the year on which
banks are open for business in Chicago, Illinois, and San
Francisco, California.
"Capital Expenditures" means, for any period, without
--------------------
duplication, the sum of
(a) the aggregate amount of all expenditures of the
Borrower and its Subsidiaries for fixed or capital assets
(exclusive of Acquisition Capital Expenditures and the
aggregate amount of all intangible assets of ABC or Any-Kind
in connection with the acquisition thereof or an Acquisition
Prospect in connection with a Permitted Acquisition) made
during such period which, in accordance with GAAP, would be
classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease
Liabilities incurred during such period.
For purposes of calculating Capital Expenditures of the Borrower and
its Subsidiaries for any period, there shall be included the Capital
Expenditures and Capitalized Lease Liabilities (other than Acquisition
Capital Expenditures) of each Acquisition Prospect for such period,
provided, that such Acquisition Prospect was actually acquired by the
--------
Borrower and its Subsidiaries during such period.
"Capitalized Lease Liabilities" means all monetary obligations
-----------------------------
of the Borrower or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Agreement
and each other Loan Document, the amount of such obligations shall be
the capitalized amount thereof, determined in accordance with GAAP,
and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Cash Concentration Account" has the meaning assigned to that
--------------------------
term in the Funds Transfer and Indemnity Agreement.
"Cash Equivalent Investment" means, at any time:
--------------------------
(a) any evidence of Indebtedness, maturing not more than
one year after such time, issued or guaranteed by the United
States Government;
(b) commercial paper, maturing not more than nine months
from the date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any state of the
United States or of the District of Columbia and rated at
least A-l by Standard & Poor's Ratings Group and P-l by
Moody's Investors Service, Inc., or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or banker's acceptance,
maturing not more than one year after such time, which is
issued by either
(i) a commercial banking institution that is a
member of the Federal Reserve System and has a combined
capital and surplus and undivided profits of not less
than $500,000,000, or
(ii) any Lender;
(d) any repurchase agreement entered into with any
Lender (or other commercial banking institution of the stature
referred to in clause (c)(i)) which
(i) is secured by a fully perfected security
interest in any obligation of the type described in any
of clauses (a) through (c); and
(ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the
repurchase obligation of such Lender (or other commercial
banking institution) thereunder; or
(e) money market mutual funds registered with the
Securities and Exchange Commission meeting the
requirements of Rule 2a-7 promulgated under the Investment
Company Act of 1940.
"Cash Field Warehousing Agreement" means the Amended and
--------------------------------
Restated Cash Field Warehousing Agreement, a copy of which is attached
hereto as Exhibit N, as amended, supplemented or otherwise modified
from time to time.
"CERCLA" means the Comprehensive Environmental Response,
------
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response
-------
Compensation Liability Information System List.
"Change in Control" means
-----------------
(a) the failure of WPG (together with their respective
Affiliates) (i) to own, directly or indirectly, free and clear
of any Liens or other encumbrances, at least 51% of the
outstanding shares of each class of stock of Holdings having
ordinary voting powers, determined on a fully diluted basis,
and (ii) to have the power to direct or cause the direction of
the management or policies of Holdings;
(b) the failure of Holdings (i) to own, free and clear
of all Liens or other encumbrances (other than any Lien or
encumbrance created by the Loan Documents), 100% of the
outstanding shares of each class of capital stock of the
Borrower on a fully diluted basis and (ii) to have the power
to direct or cause the direction of the management or policies
of the Borrower;
(c) the failure of the Borrower (i) to own, free and
clear of all Liens or other encumbrances (other than any Lien
or encumbrance created by the Loan Documents), 100% of the
outstanding shares of each class of capital stock of each of
its Subsidiaries on a fully diluted basis and (ii) to have the
power to direct or cause the direction of the management or
policies of each of its Subsidiaries; or
(d) any "Change of Control" as defined in the Senior
Notes Indenture.
"Check Cashing Business" is defined in the recitals.
----------------------
"Code" means the Internal Revenue Code of 1986, as amended,
----
reformed or otherwise modified from time to time.
"Commitment" means, relative to any Lender, such Lender's
----------
obligation to make Revolving Loans and to issue (in the case of the
Issuer) or participate in (in the case of all Lenders) Letters of
Credit.
"Commitment Amount" means, on any date, $25,000,000, as such
-----------------
amount may be reduced from time to time pursuant to Section 2.4.
"Commitment Termination Date" means the earliest of
---------------------------
(a) December 31, 2000;
(b) the date on which the Commitment Amount is
terminated in full or reduced to zero pursuant to Section 2.4;
and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c), the
Commitments shall terminate automatically and without any further
action.
"Commitment Termination Event" means
----------------------------
(a) the occurrence of any Default described in clauses
(a) through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the giving
of notice by the Administrative Agent, acting at the
direction of the Required Lenders, to the Borrower that
the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed
----------------------
and executed by an Authorized Officer of the Borrower, substantially
in the form of Exhibit I hereto.
"Consumer Credit Laws" means all applicable statutes, laws,
--------------------
ordinances, codes, rules, regulations and guidelines promulgated by
any Governmental Authority (including consent decrees and
administrative orders) relating to consumer credit and protection
including without limitation, usury laws, the Truth-in-Lending Act,
the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, the Federal Trade Commission Act
(including the Federal Trade Commission "Holder in Due Course Rule"),
the Soldiers and Sailors Relief Act of 1940, the Magnuson-Moss
Warranty Act, F.R.S. Board Regulations B and Z, applicable state
consumer credit laws including sales finance agency acts, consumer
credit sales laws and small loan acts, any laws regarding unfair and
deceptive practices and any and all other Consumer Credit Laws
regarding the ability of an entity to charge interest or a time price
differential at a certain rate, and any equal credit opportunity,
discrimination and other disclosure laws.
"Contingent Liability" means any agreement, undertaking or
--------------------
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to
supply funds to, or otherwise to invest in, a debtor, or otherwise to
assure a creditor against loss) the indebtedness, obligation or any
other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of
dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability
shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or maximum principal amount, if
larger) of the debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of
------------------------------
continuation or conversion and certificate duly executed by an
Authorized Officer of the Borrower, substantially in the form of
Exhibit F hereto.
"Controlled Group" means all members of a controlled group of
----------------
corporations and all members of a controlled group of trades or
businesses (whether or not incorporated) under common control which,
together with the Borrower, are treated as a single employer under
Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.
"CoreStates" means CoreStates Bank, N.A.
"Credit Extension" means, as the context may require,
----------------
(a) the making of a Loan by a Lender (including by means
of a conversion of any Disbursement pursuant to Section
2.8.2) but excluding any conversion or continuation of such
Loan pursuant to Section 2.6 hereof which does not increase
the principal amount of such Loan; or
(b) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any existing Letter of
Credit, by the Issuer.
"Debt" means all Indebtedness of the Borrower and its
----
Subsidiaries of the nature referred to in clauses (a), (b), (c) and
(e) of the definition of "Indebtedness".
"Default" means any Event of Default or any condition,
-------
occurrence or event which, after notice or lapse of time or both,
would constitute an Event of Default.
"Disbursement" is defined in Section 2.8.2.
------------
"Disbursement Date" is defined in Section 2.8.2.
-----------------
"Disclosure Schedule" means the Disclosure Schedule attached
-------------------
hereto as Schedule I, as it may be amended, supplemented or otherwise
modified from time to time by the Borrower with the written consent of
the Administrative Agent and the Required Lenders.
"Documentation Agent" is defined in the preamble.
-------------------
"Dollar" and the sign "$" mean lawful money of the United
------ -
States.
"Domestic Subsidiary" means each Subsidiary of the Borrower
-------------------
other than a Foreign Subsidiary.
"EBITDA" means, as of the close of any Fiscal Quarter, for any
------
Person, the sum, without duplication, computed for the period of four
consecutive Fiscal Quarters ending as of the close of such Fiscal
Quarter, of all amounts which, in accordance with GAAP, would be
included on the consolidated financial statements of such Person and
its Subsidiaries as
(a) Net Income,
plus
(b) Interest Expense,
plus
(c) to the extent deducted in determining Net Income,
provisions for federal, state, local and foreign income taxes
(whether paid or deferred) of such Person and its Subsidiaries
on a consolidated basis,
plus
(d) to the extent deducted in determining Net Income,
amortization and depreciation of assets (both tangible and
intangible) of such Person and its Subsidiaries, on a
consolidated basis.
For purposes of calculating EBITDA of the Borrower and its
Subsidiaries for any period, if an Acquisition Prospect shall have
been acquired in such period, there shall be included the EBITDA of
such Acquisition Prospect from the date of acquisition until the end
of such period and the Adjusted EBITDA of such Acquisition Prospect
for such period from the beginning of such period until the date of
acquisition. In addition, for the purpose of calculating EBITDA for
the Borrower and its Subsidiaries for any period, EBITDA for any
Subsidiary sold in such period shall be excluded.
"Eligible Assignee" means: (i) a commercial bank organized
-----------------
under the laws of the United States, or any state thereof, and having
a combined capital and surplus of at least $500,000,000; (ii) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development,
or a political subdivision of any such country, and having a combined
capital and surplus of at least $500,000,000, provided that such bank
is acting through a branch or agency located in the United States;
(iii) (x) a Lender, (y) an Affiliate of a Lender that is a Person of
the type described in clause (i), (ii) or (iv) of this definition or
(z) a Person that is primarily engaged in the business of commercial
banking and that is (A) a Subsidiary of a Lender, (B) a Subsidiary of
a Person of which a Lender is a Subsidiary, or (C) a Person of which a
Lender is a Subsidiary; and (iv) an insurance company, pension fund,
mutual fund, commercial finance company or similar financial
institution having a net worth of at least $250,000,000.
"Eligible Government Receivables" means any Account Receivable
-------------------------------
of the Borrower or any of its Subsidiaries which meets the following
requirements:
(a) it arises from the performance of services by the
Borrower or such Subsidiary, which services have been fully
performed and, if applicable, acknowledged and/or accepted by
the account debtor with respect thereto;
(b) it is subject to a duly perfected Lien in favor of
the Administrative Agent and is not subject to any assignment,
claim or Lien, other than such Lien in favor of the
Administrative Agent;
(c) it is a valid, legally enforceable and unconditional
obligation of the related account debtor, entered into by such
account debtor pursuant to proper authority, and is not
subject to any defense to payment, setoff, counterclaim,
credit or allowance or adjustment by such account debtor, or
to any claim by such account debtor denying liability
thereunder in whole or in part, and such account debtor has
not refused to accept any of the services which are the
subject of such Account Receivable;
(d) it does not arise out of a contract or order which,
by its terms, forbids, restricts or makes void or
unenforceable the assignment by the Borrower or such
Subsidiary to the Administrative Agent of the Account
Receivable arising with respect thereto;
(e) the account debtor with respect thereto is (x) the
United States or a department, agency or instrumentality
thereof or any state thereof or a city, county, department,
agency or instrumentality thereof or (y) a financial
institution organized under the laws of the United States or
any state thereof which is performing services in connection
with the distribution of public assistance benefits for a
Governmental Authority of the type specified in clause (e)(x)
above and, in the case of this clause (e)(y), the Account
Receivable relates to such services;
(f) the Borrower or the applicable Subsidiary has
assigned its right to payment of such Account Receivable to
the Administrative Agent pursuant to the Assignment of Claims
Act of 1940, as amended, or any applicable analogous state or
municipal law, rule, regulation,
ordinance or resolution (provided, that no Account Receivable
--------
shall be deemed not to be an Eligible Government Receivable
solely by virtue of noncompliance with this clause (f) for the
first 90 days following the Restatement Date); and
(g) if the Account Receivable is evidenced by chattel
paper or an instrument, the original of such chattel paper or
instrument has been endorsed and/or assigned and delivered to
the Agent in a manner satisfactory to the Administrative
Agent.
An Account Receivable which is at any time an Eligible Government
Receivable, but which subsequently fails to meet any of the foregoing
requirements, shall forthwith cease to be an Eligible Government
Receivable.
"Environmental Laws" means all applicable statutes, laws,
------------------
ordinances, codes, rules, regulations and guidelines promulgated by
any Governmental Authority (including consent decrees and
administrative orders) relating to public health and safety and
protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of
-----
1974, as amended, and any successor statute of similar import,
together with all applicable regulations thereunder, in each case as
in effect from time to time. References to sections of ERISA also
refer to any successor sections.
"Eurocurrency Reserve Percentage" is defined in Section 3.2.1.
-------------------------------
"Eurodollar Rate" is defined in Section 3.2.1.
---------------
"Eurodollar Rate Loan" means a Loan bearing interest, at all
--------------------
times during an Interest Period applicable to such Loan, at a fixed
rate of interest determined by reference to the Eurodollar Rate
(Reserve Adjusted).
"Eurodollar Rate (Reserve Adjusted)" is defined in Section
----------------------------------
3.2.1.
"Event of Default" is defined in Section 8.1.
----------------
"Excess Capital Expenditures" is defined in Section 7.2.7.
---------------------------
"Existing Credit Agreement" is defined in the recitals.
-------------------------
"Federal Funds Rate" means, for any day, the rate set forth in
------------------
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor publication, "H.15(519)") on the
preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day
will be the arithmetic mean as determined by the Administrative Agent
of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that day by each
of three leading brokers of Federal funds transactions in New York
City selected by the Administrative Agent.
"Fiscal Quarter" means any quarter of a Fiscal Year.
--------------
"Fiscal Year" means any period of twelve consecutive calendar
-----------
months ending on June 30.
"Foreign Subsidiary" means each Subsidiary of the Borrower
------------------
organized under the laws of any jurisdiction other than the United
States or any state thereof.
"F.R.S. Board" means the Board of Governors of the Federal
------------
Reserve System or any successor thereto.
"Funds Transfer and Indemnity Agreement" means the Amended and
--------------------------------------
Restated Funds Transfer and Indemnity Agreement among the Borrower,
the Administrative Agent and CoreStates, a copy of which is attached
as Exhibit O hereto, as amended, supplemented, restated or otherwise
modified from time to time.
"GAAP" is defined in Section 1.4.
----
"Governmental Authority" means any nation or government, any
----------------------
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Hazardous Material" means
------------------
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance within the meaning of
any other applicable law, regulation, ordinance or requirement
promulgated by any Governmental Authority (including consent
decrees and administrative orders) relating to or imposing
liability or standards of conduct concerning any hazardous,
toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Hedging Agreements" means, with respect to any Person, all
------------------
interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in
interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms
------ ------ ------ ---------
contained in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document, as the case may be, as a whole
and not to any particular Section, paragraph or provision of this
Agreement or such other Loan Document.
"Holdings" is defined in the recitals.
--------
"Holdings Guaranty and Pledge Agreement" means the Holdings
--------------------------------------
Guaranty and Pledge Agreement executed and delivered pursuant to the
Original Credit Agreement, as heretofore amended and as hereafter
amended, supplemented, restated or otherwise modified from time to
time; a conformed composite copy of the Holdings Guaranty and Pledge
Agreement as in effect on the date hereof is attached hereto as
Exhibit L-2.
"Impermissible Qualification" means, relative to the opinion
---------------------------
or certification of any independent public accountant as to any
financial statement of any Obligor, any qualification or exception to
such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of
any item in such financial statement and which, as a condition
to its removal, would require an adjustment to such item the
effect of which would be to cause such Obligor to be in
default of any of its obligations under Section 7.2.4.
"including" means including without limiting the generality of
---------
any description preceding such term, and, for purposes of this
Agreement and each other Loan Document, the parties hereto agree that
the rule of ejusdem generis shall not be applicable to limit a general
------- -------
statement, which is followed by or referable to an enumeration of
specific matters, to matters similar to the matters specifically
mentioned.
"Indebtedness" of any Person means, without duplication:
------------
(a) all obligations of such Person for borrowed money
and all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative
to the face amount of all letters of credit, whether or not
drawn, and banker's acceptances issued for the account of such
Person;
(c) all obligations of such Person as lessee under
leases which have been or should be, in accordance with GAAP,
recorded as Capitalized Lease Liabilities;
(d) all other items which, in accordance with GAAP,
would be included as liabilities on the liability side of the
balance sheet of such Person as of the date at which
Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging
Agreements;
(f) whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to pay
the deferred purchase price of property or services, and
indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or
other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is
limited in recourse; and
(g) all Contingent Liabilities of such Person in respect
of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture in
which such Person is a general partner or a joint venturer.
"Indemnified Liabilities", except as otherwise defined for
-----------------------
purposes of Section 9.7, has the meaning specified in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
-------------------
"Interest Coverage Ratio" means, as of the close of any Fiscal
-----------------------
Quarter, the ratio, computed for the period of four consecutive Fiscal
Quarters ending as of the close of such Fiscal Quarter, of
(a) EBITDA for such period
to
(b) Interest Expense for such period;
provided, however, that if an Acquisition Prospect shall have been
-------- -------
acquired during such four Fiscal Quarter Period, Interest Expense in
clause (b) shall be calculated as if any Indebtedness incurred to
finance the related Permitted Acquisition had been incurred on the
first day of such period and shall have accrued interest prior to the
actual date of incurrence at the interest rate applicable on such date
of incurrence.
"Interest Expense" means, with respect to any Person for any
----------------
period, the sum of the aggregate consolidated interest expense of such
Person and its Subsidiaries for such period which, in accordance with
GAAP, would be included on the consolidated financial statements of
such Person and its Subsidiaries, including the portion of any
Capitalized Lease Liabilities which is allocable to interest expense
in accordance with GAAP.
"Interest Period" means, relative to any Eurodollar Rate
---------------
Loans, the period beginning on (and including) the date on which such
Eurodollar Rate Loan is made or continued as, or converted into, a
Eurodollar Rate Loan pursuant to Section 2.5 or 2.6 and ending on (but
excluding) the day which numerically corresponds to such date one,
two, three or, if available, six months
thereafter (or, if such month has no numerically corresponding day, on
the last Business Day of such month), in each case as the Borrower may
select in its relevant notice pursuant to Section 2.5 or 2.6;
provided, however, that
-------- -------
(a) the Borrower shall not be permitted to select
Interest Periods if more than four Interest Periods would be
in effect at any one time;
(b) Interest Periods commencing on the same date for
Loans comprising part of the same Borrowing shall be of the
same duration;
(c) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on
the next following Business Day (unless, if such Interest
Period applies to Eurodollar Rate Loans, such next following
Business Day is the first Business Day of a calendar month, in
which case such Interest Period shall end on the Business Day
next preceding such numerically corresponding day); and
(d) no Interest Period for Loans may end later than the
Stated Maturity Date.
"Investment" means, relative to any Person,
----------
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of
business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such
Person in any other Person.
The amount of any Investment shall be the original principal or
capital amount thereof less all returns of principal or equity thereon
(and without adjustment by reason of the financial condition of such
other Person) and shall, if made by the transfer or exchange of
property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such
property.
"Issuance Request" means an issuance request duly executed by
----------------
the chief executive, accounting or financial
Authorized Officer of the Borrower, substantially in the form of
Exhibit P hereto.
"Issuer" means BAI in its capacity as issuer of the Letters of
------
Credit, together with any replacement letter of credit issuer arising
under Section 9.1(b).
"Lender Assignment Agreement" means a Lender Assignment
---------------------------
Agreement substantially in the form of Exhibit H hereto.
"Lenders" is defined in the preamble. "Lenders" shall include
-------
the Issuer.
"Letter of Credit" is defined in Section 2.1(b).
----------------
"Letter of Credit Outstandings" means, at any time, an amount
-----------------------------
equal to the sum of
(a) the aggregate Stated Amount at such time of all
Letters of Credit then outstanding and undrawn (as such
aggregate Stated Amount shall be adjusted, from time to time,
as a result of drawings, the issuance of Letters of Credit, or
otherwise),
plus
(b) the then aggregate amount of all unpaid and
outstanding Reimbursement Obligations pertaining to Letters of
Credit.
"Leverage Ratio" means, as of the close of any Fiscal Quarter,
--------------
the ratio of
(a) the sum of (i) the outstanding principal amount of
all Debt other than Loans of any Person and its Subsidiaries
outstanding as of the close of such Fiscal Quarter plus (ii)
(A) the daily average outstanding principal amount of Loans
during such Fiscal Quarter less (B) the daily average amount
of funds that the Borrower and its Subsidiaries have invested
in cash and Cash Equivalent Investments during such Fiscal
Quarter plus (iii) the Western Union Commission Advance
to
(b) EBITDA computed for the period of four consecutive
Fiscal Quarters ending as of the close of such Fiscal Quarter.
"Lien" means any security interest, mortgage, pledge,
----
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property to
secure payment of a debt or performance of an obligation or other
priority or preferential arrangement of any kind or nature whatsoever.
"Loan" means a Revolving Loan of any type.
----
"Loan Document" means this Agreement, the Notes, the Letters
-------------
of Credit, the Subsidiary Guaranty, the Pledge Agreements, the
Security Agreements, the Funds Transfer and Indemnity Agreement, the
Cash Field Warehousing Agreement, the Post-Closing Matters Letter
Agreement and all Hedging Agreements entered into with a Lender and
all other documents, agreements and instruments supporting, securing
or otherwise related to this Agreement.
"Merger Agreement" means the Agreement and Plan of Merger
----------------
dated as of June 30, 1994 among MMH Transit Co., Bear Stearns
Acquisition XII, Inc. and Holdings.
"Net Cash Proceeds" means, relative to any sale or issuance by
-----------------
the Borrower or any Subsidiary of the Borrower of any equity
securities or any securities representing Indebtedness of the type
referred to in clause (a) of the definition thereof, all gross cash
proceeds received by the Borrower or such Subsidiary net of all
underwriting commissions, private placement fees, investment banking,
legal and accounting fees and disbursements and other reasonable costs
and expenses payable or actually paid in connection with such sale or
issuance.
"Net Disposition Proceeds" means the gross cash proceeds
------------------------
received by the Borrower or any of its Subsidiaries from any sale,
lease, assignment, transfer, conveyance or other disposition
(including, without limitation, any casualty or loss) of any of their
respective assets to unaffiliated third parties (other than the amount
of any Indebtedness repaid in connection with the sale of such assets
and less proceeds from the sale of obsolete fixed assets in the
ordinary course of business), less reasonable fees and expenses
incurred in connection therewith, and good faith estimated taxes
payable as a result thereof which are subsequently actually paid.
"Net Income" means, for any period, for any Person, the
----------
aggregate of all amounts which, in accordance with GAAP, would be
included as net income on a consolidated statement of income of such
Person and its Subsidiaries for such period.
"Net Worth" means, at any time and with respect to any Person,
---------
the sum of all amounts (without duplication) which, in accordance with
GAAP, would be included under shareholders' equity on a consolidated
balance sheet of such Person and its Subsidiaries at such time.
"New Subsidiary" is defined in Section 6.8.
--------------
"Note" means a Revolving Note.
----
"Obligations" means all obligations (monetary or otherwise) of
-----------
the Borrower and each other Obligor arising under or in connection
with this Agreement, the Notes, the Letters of Credit and each other
Loan Document, howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, now or hereafter existing, or due
or to become due.
"Obligor" means the Borrower or any other Person (other than
-------
the Administrative Agent, the Documentation Agent or any Lender)
obligated under, or otherwise a party to, any Loan Document.
"Organic Document" means, relative to any Obligor, its
----------------
certificate of incorporation, its by-laws and all shareholder
agreements, voting trusts and similar arrangements applicable to any
of its authorized shares of capital stock.
"Original Credit Agreement" means the Credit Agreement dated
-------------------------
as of June 30, 1994 among the Borrower, certain Lenders and the
Administrative Agent.
"Participant" is defined in Section 10.11.2.
-----------
"PBGC" means the Pension Benefit Guaranty Corporation and any
----
entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined
------------
in section 3(2) of ERISA, which is subject to Title IV of ERISA (other
than a multiemployer plan as defined in section 4001(a)(3) of ERISA),
and to which the Borrower or any corporation, trade or business that
is, along with the Borrower, a member of a Controlled Group, may have
liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at
any time during the preceding five years, or by reason of being deemed
to be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, as to any Lender, the percentage which (a)
----------
the aggregate amount of such Lender's Commitment is of (b) the
aggregate amount of the Commitments of all Lenders; provided that
--------
after the Commitments have been terminated, "Percentage" shall mean,
as to any Lender, the percentage which the aggregate principal amount
of such Lender's Loans is of the aggregate principal amount of all
Loans. The initial Percentage for each Lender is set forth opposite
such Lender's name on Schedule 1.1.
"Permitted Acquisition" means any purchase or acquisition by
---------------------
the Borrower or any of its Subsidiaries of all or any part of the
assets, shares or equity interests of another Person involved in the
Check Cashing Business (including a Proposed Acquisition).
"Person" means any natural person, corporation, partnership,
------
limited liability company, firm, association, trust, government,
governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
----
"Pledge Agreement" means, as the context may require, either
----------------
the Borrower Pledge Agreement or the Holdings Guaranty and Pledge
Agreement.
"Post-Closing Matters Letter Agreement" means the letter
-------------------------------------
agreement, dated as of June 30, 1994, from the Borrower, addressed to
BAI, as predecessor to the Administrative Agent.
"Proposed Acquisitions" means the proposed acquisitions by
---------------------
Holdings, the Borrower or any of its Subsidiaries of the assets of or
equity interests in (a) National Money Mart Inc. and Tri-S
Investments, Inc., (b) Cash-N-Dash Check Cashing, Inc. and (c) C&C
Check Cashing, Inc.
"Quarterly Payment Date" means the last day of each March,
----------------------
June, September and December or, if any such day is not a Business
Day, the next preceding Business Day.
"Reference Rate Loan" means a Loan bearing interest at a
-------------------
fluctuating rate determined by reference to the Alternate Reference
Rate.
"Registration Rights Agreement" means the A/B Exchange
-----------------------------
Registration Rights Agreement, dated as of November 15, 1996, among
the Borrower, various subsidiaries of the Borrower, as guarantors,
Lehman Brothers Inc. and BA Securities, Inc.
"Reimbursement Obligation" is defined in Section 2.8.3.
------------------------
"Release" means a "release", as such term is defined in
-------
CERCLA.
"Required Lenders" means, at any time, Lenders having
----------------
Percentages aggregating at least 66-2/3%.
"Resource Conservation and Recovery Act" means the Resource
--------------------------------------
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in
-- ----
effect from time to time.
"Restatement Date" is defined in Section 5.1.
----------------
"Restatement Date Certificate" means a certificate duly
----------------------------
completed and executed by an Authorized Officer of the Borrower,
substantially in the form of Exhibit J hereto.
"Revolving Loan" is defined in Section 2.1(a).
--------------
"Revolving Note" means a promissory note of the Borrower
--------------
payable to the order of any Lender, in the form of Exhibit A hereto
(as such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate Indebtedness of
the Borrower to such Lender resulting from outstanding Revolving
Loans, and also means all other promissory notes accepted from time to
time in substitution therefor or renewal thereof.
"Security Agreement" means, as the context may require, either
------------------
the Borrower Security Agreement or the Subsidiary Security Agreement.
"Senior Notes" means the $110,000,000 10-7/8% Senior Notes,
------------
due November 15, 2006, of the Borrower issued pursuant to the Senior
Notes Indenture, as amended from time to time in accordance with
Section 7.2.11.
"Senior Notes Indenture" means the Indenture, dated as of
----------------------
November 15, 1996, among the Borrower, as issuer, various Subsidiaries
of the Borrower, as guarantors, and Fleet National Bank, as trustee,
as amended from time to time in accordance with Section 7.2.11.
"Stated Amount" means, with respect to any Letter of Credit at
-------------
any time, the maximum aggregate amount thereunder at any time during
the then remaining term of such Letter of Credit under any and all
circumstances.
"Stated Expiry Date" is defined in Section 2.8.
------------------
"Stated Maturity Date" means December 31, 2000.
--------------------
"Subsidiary" means, with respect to any Person, (i) any
----------
corporation of which more than 50% of the outstanding capital stock
having ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency) is
at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or
more other Subsidiaries of such Person and (ii) any partnership,
limited liability company, association, joint venture or other entity
of which such Person, together with its other Subsidiaries, has more
than a 50% equity interest.
"Subsidiary Guaranty" means the Subsidiary Guaranty executed
-------------------
and delivered pursuant to the Original Credit Agreement, as heretofore
amended and as hereafter amended, supplemented, restated or otherwise
modified from time to time; a conformed composite copy of the
Subsidiary Guaranty as in effect on the date hereof is attached hereto
as Exhibit K.
"Subsidiary Security Agreement" means the Security Agreement
-----------------------------
(Subsidiaries) executed and delivered pursuant to the Original Credit
Agreement as heretofore amended and as hereafter amended,
supplemented, restated or otherwise modified from time to time; a
conformed composite copy of the Subsidiary Security Agreement as in
effect on the date hereof is attached hereto as Exhibit M-2.
"Taxes" is defined in Section 4.6.
-----
"type" means, relative to any Loan, the portion thereof, if
----
any, being maintained as a Reference Rate Loan or a Eurodollar Rate
Loan.
"United States" or "U.S." means the United States of America,
------------- ----
its fifty States and the District of Columbia.
"Welfare Plan" means a "welfare plan", as such term is defined
------------
in section 3(1) of ERISA.
"Western Union" means Western Union Financial Services, Inc.
-------------
"Western Union Commission Advance" means an advance or
--------------------------------
advances from Western Union to the Borrower, pursuant to documentation
in form and substance satisfactory to the Required Lenders, in a
minimum amount of $2,900,000, which shall not bear interest, shall be
unsecured and shall be payable in equal annual payments not to exceed
$1,000,000 each at the end of each calendar year ending after the
Restatement Date.
"Western Union Commission Shortfall" means the amount by which
----------------------------------
the proceeds of the Western Union Commission Advance actually received
by the Borrower are less than $2,900,000.
"WPG" means, collectively, WPG Corporate Development
---
Associates IV, L.P., a Delaware limited partnership, and WPG Corporate
Development Associates IV (Overseas), L.P., a Cayman Islands exempt
limited partnership.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined
--------------------
or the context otherwise requires, terms for which meanings are
provided in this Agreement shall have such meanings when used in the
Disclosure Schedule and in each Note, Borrowing Request,
Continuation/Conversion Notice, Loan Document, notice and other
communication delivered from time to time in connection with this
Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified,
----------------
references in this Agreement and in each other Loan Document to any
Article or Section are references to such Article or Section of this
Agreement or such other Loan Document, as the case may be, and, unless
otherwise specified, references in any Article, Section or definition
to any clause are references to such clause of such Article, Section
or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless
---------------------------------------
otherwise specified, all accounting terms used herein or in any other
Loan Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder (including under Section 7.2.4)
shall be made, and all financial statements required to be delivered
hereunder or thereunder shall be prepared in accordance with, those
generally accepted accounting principles ("GAAP") applied in the
----
preparation of the financial statements referred to in Section 6.5.
ARTICLE II.
COMMITMENTS, BORROWING PROCEDURES,
LETTERS OF CREDIT AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the
-----------
conditions of this Agreement (including Article V),
(a) each Lender severally agrees, from time to time on any
Business Day occurring prior to the Commitment Termination Date, to
make loans (relative to such Lender, its "Revolving Loans") to the
---------------
Borrower equal to such Lender's Percentage of the aggregate amount of
the Borrowing of Revolving Loans requested by the Borrower to be made
on such day. On the terms and subject to the conditions hereof, the
Borrower may from time to time borrow, prepay and reborrow Revolving
Loans; and
(b) from time to time on any Business Day occurring prior to
the earlier of (x) January 31, 1997 and (y) the Commitment Termination
Date, the Issuer agrees to
(i) issue one or more Letters of Credit (relative to the
Issuer, its "Letters of Credit") for the account of the
-----------------
Borrower in Stated Amounts requested by the Borrower on such
day; or
(ii) extend the Stated Expiry Date of an existing Letter
of Credit previously issued hereunder.
SECTION 2.2. Lenders Not Permitted or Required to Make Loans.
-----------------------------------------------
No Borrowing of Loans shall be made if, after giving effect to such
Borrowing, the aggregate outstanding principal amount of all Loans of
all Lenders, together with the aggregate principal amount of all
Letter of Credit Outstandings, would exceed the lesser of (x) the
Commitment Amount and (y) the Borrowing Base. No Lender shall be
permitted or required to make any Loan under its Commitment if, after
giving effect thereto, the aggregate outstanding principal amount of
all such Loans by such Lender would exceed such Lender's Percentage of
the Commitment Amount.
SECTION 2.3. Issuer Not Permitted or Required to Issue
-----------------------------------------
Letters of Credit. The Issuer shall not be permitted or required to
-----------------
issue, or extend the Stated Expiry Date of, any Letter of Credit if,
(a) after giving effect thereto, the aggregate amount of
all Letter of Credit Outstandings would exceed
the least of (i) the Commitment Amount less the aggregate
principal amount of outstanding Revolving Loans, (ii) the
Borrowing Base less the aggregate principal amount of all
outstanding Revolving Loans or (iii) $6,000,000; or
(b) after giving effect thereto, the term of such Letter
of Credit would extend beyond January 31, 1997.
SECTION 2.4. Reduction of Commitment Amount. (a) Voluntary
------------------------------ ---------
Reductions. The Borrower may, from time to time on any Business Day,
----------
voluntarily reduce the amount of the Commitment Amount; provided,
--------
however, that all such reductions shall require at least three
-------
Business Days' prior written notice to the Administrative Agent and be
permanent, and any partial reduction of the Commitment Amount shall be
in a minimum amount of $500,000 and in an integral multiple of
$50,000.
(b) Mandatory Reductions Upon Receipt of Applicable
-----------------------------------------------
Disposition Proceeds. Forthwith upon receipt by the Borrower or any
--------------------
of its Subsidiaries of any Applicable Disposition Proceeds, the
Commitment Amount shall be reduced by an amount equal to 100% of such
Applicable Disposition Proceeds.
(c) Mandatory Reductions Upon Receipt of Net Cash Proceeds of
---------------------------------------------------------
Debt or Equity Issuances. Forthwith upon the receipt by the Borrower
------------------------
or any of its Subsidiaries of any Net Cash Proceeds from any issuance
of equity securities or Indebtedness of the type referred to in clause
(a) of the definition thereof of the Borrower or any of its
Subsidiaries (exclusive of intercompany issuances), the Commitment
Amount shall be reduced by an amount equal to 100% of such Net Cash
Proceeds.
SECTION 2.5. Borrowing Procedure. The Borrower may from time
-------------------
to time irrevocably request, by delivering a Borrowing Request to the
Administrative Agent, (i) in the case of Eurodollar Rate Loans, not
later than 12:00 p.m., Chicago, Illinois time, three Business Days
before a proposed Borrowing but not more than five Business Days
before a proposed Borrowing, or (ii) in the case of Reference Rate
Loans, not later than 12:00 p.m., Chicago, Illinois time, on the date
of a proposed Borrowing but not more than five Business Days before a
proposed Borrowing, that a Borrowing be made in a minimum amount of
$100,000 and an integral multiple of $1,000, or in the unused portion
of the Commitment Amount. Upon receipt of each Borrowing Request, the
Administrative Agent shall give to each Lender prompt notice thereof
on the same day such Borrowing Request is received. On the terms and
subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans
and shall be made on the Business Day specified in such Borrowing
Request. On or before 1:00 p.m., Chicago, Illinois time, on such
Business Day, each Lender shall deposit with the Administrative Agent
at the payment office of the Administrative Agent in Concord,
California same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made to
an account which the Administrative Agent shall specify from time to
time by notice to the Lenders. To the extent funds are received from
the Lenders, the Administrative Agent shall make such funds available
to the Borrower by wire transfer to the accounts the Borrower shall
have specified in its Borrowing Request. No Lender's obligation to
make any Loan shall be affected by any other Lender's failure to make
any Loan.
SECTION 2.6. Continuation and Conversion Elections. (a) The
-------------------------------------
Borrower may from time to time irrevocably elect, pursuant to the
delivery of a Continuation/Conversion Notice and Borrowing Base
Certificate pursuant to Section 2.6(b), that all or any portion in an
aggregate minimum amount of $50,000 and an integral multiple of $1,000
of any Loans be, in the case of Reference Rate Loans, converted into
Eurodollar Rate Loans or, in the case of Eurodollar Rate Loans, be
converted on a Business Day into Reference Rate Loans or continued as
Eurodollar Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any Eurodollar Rate
Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such Eurodollar Rate
Loan shall, on such last day, automatically convert to a Reference
Rate Loan); provided, however, that (i) each such conversion or
-------- -------
continuation shall be pro rated among the outstanding Loans of the
Lenders, (ii) no portion of the outstanding principal amount of any
Loan may be continued as, or be converted into, a Eurodollar Rate Loan
when any Default has occurred and is continuing and (iii) no portion
of the outstanding principal amount of any Loan may be continued as,
or be converted into, a Eurodollar Rate Loan when the outstanding
principal balance of the Loans exceeds the lesser of (x) the
Commitment Amount and (y) the Borrowing Base.
(b) The Borrower shall deliver a Continuation/Conversion
Notice, together with a Borrowing Base Certificate, to the
Administrative Agent (x) on or before 12:00 p.m., Chicago, Illinois
time, on the proposed date of continuation or conversion, if the Loans
are to be converted into or continued as Reference Rate Loans and (y)
on or before 12:00 p.m., Chicago, Illinois time on a Business Day that
is not less than three nor more than five Business Days in advance of
the proposed date of continuation or conversion, if the Loans are to
be converted into or continued as Eurodollar Rate Loans.
SECTION 2.7. Funding. Each Lender may, if it so elects,
-------
fulfill its obligation to make, continue or convert Eurodollar Rate
Loans hereunder by causing one of its foreign branches or Affiliates
(or an international banking facility created by such Lender) to make
or maintain such Eurodollar Rate Loan; provided, however, that such
-------- -------
Eurodollar Rate Loan shall nonetheless be deemed to have been made and
to be held by such Lender, and the obligation of the Borrower to repay
such Eurodollar Rate Loan shall nevertheless be to such Lender for the
account of such foreign branch, Affiliate or international banking
facility. In addition, the Borrower hereby consents and agrees that,
for purposes of any determination to be made for purposes of Section
4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that each
Lender elected to fund all Eurodollar Rate Loans by purchasing Dollar
deposits in the interbank eurodollar market.
SECTION 2.8. Issuance Procedures. By delivering to the
-------------------
Administrative Agent and the Issuer an Issuance Request on or before
11:00 a.m., Chicago, Illinois time, on a Business Day the Borrower may
from time to time request that the Issuer issue a Letter of Credit (or
amend or otherwise modify an existing Letter of Credit) in such form
as may be requested by the Borrower and approved by the Issuer. No
Letter of Credit shall be payable in any currency other than Dollars.
Each such request shall be made on not less than two nor more than
five Business Days' notice. Upon receipt of an Issuance Request, the
Administrative Agent shall promptly on the same day notify the Issuer
and each Lender thereof. Each Letter of Credit shall by its terms be
stated to expire (whether originally or after giving effect to any
extension) on a date (its "Stated Expiry Date") not later than January
------------------
31, 1997.
The Issuer will issue such Letter of Credit and will make
available to the beneficiary thereof the original of each Letter of
Credit which it issues hereunder.
SECTION 2.8.1. Other Lenders' Participation. Automatically,
----------------------------
and without further action, upon the issuance of each Letter of
Credit, each Lender (other than the Issuer) shall be deemed to have
irrevocably purchased from the Issuer, to the extent of such Lender's
Percentage, a participation interest in such Letter of Credit
(including any Reimbursement Obligation and any other Contingent
Liability with respect thereto), and such Lender shall, to the extent
of its Percentage of the Commitment Amount, be responsible for
reimbursing promptly (and in any event within one Business Day after
receipt of demand for payment from the Issuer, together with accrued
interest from the day of such demand) the Issuer for any Reimbursement
Obligation which has not
been reimbursed in accordance with Section 2.8.3. In addition, such
Lender shall, to the extent of its Percentage of the Commitment
Amount, be entitled to receive a ratable portion of the Letter of
Credit commission payable pursuant to Section 3.3.1(b) with respect to
each Letter of Credit and a ratable portion of the interest payable
pursuant to Sections 2.8.2 and 3.2.
SECTION 2.8.2. Disbursements. Subject to the terms and
-------------
provisions of such Letter of Credit and this Agreement, upon
presentment of any Letter of Credit to the Issuer for payment, the
Issuer shall make such payment (such payment being a "Disbursement")
------------
to the beneficiary (or its designee) of such Letter of Credit on the
date designated for such payment (the "Disbursement Date"). The
-----------------
Issuer will notify the Borrower and each of the Lenders promptly of
the presentment for payment of any such Letter of Credit, together
with notice of the related Disbursement Date. Prior to 11:00 a.m.,
Chicago, Illinois time, on the next Business Day following the
Disbursement Date, the Borrower will reimburse the Administrative
Agent, for the account of the Issuer, for such Disbursement, together
with all interest accrued on such Disbursement from the Disbursement
Date, at the then applicable rate of interest for Reference Rate
Loans.
If, prior to 12:00 p.m., Chicago, Illinois time, on the
Disbursement Date, the Borrower delivers a Borrowing Request
requesting that the Reimbursement Obligation (resulting from the
related Disbursement) be automatically converted into a Borrowing of
Revolving Loans, then, if all conditions set forth in Section 5.2 have
been satisfied or waived (as if the Borrower were requesting a new
Borrowing hereunder), immediately upon such Disbursement, such
resulting Reimbursement Obligation shall be deemed to be a Borrowing
of Reference Rate Loans made pursuant to Section 2.1(a). In the event
any Default has occurred and is continuing, or any of the other
conditions set forth in Section 5.2 has not been satisfied or
otherwise waived or no Borrowing Request has been delivered hereunder,
then, prior to 11:00 a.m., Chicago, Illinois time, on the next
Business Day following the Disbursement Date, the Borrower shall
reimburse the Administrative Agent, for the account of the Issuer, for
such Disbursement, together with all interest accrued on such
Disbursement from the Disbursement Date, at the then applicable rate
of interest for Reference Rate Loans.
SECTION 2.8.3. Reimbursement. The obligation (the
-------------
"Reimbursement Obligation") of the Borrower under Section 2.8.2 to
------------------------
reimburse the Issuer with respect to each Disbursement (including
interest thereon), and, upon the failure of the
Borrower to reimburse the Issuer, each Lender's obligation under
Section 2.8.1 to reimburse the Issuer, shall each be absolute and
unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which the Borrower or such
Lender, as the case may be, may have or have had against the Issuer or
any Lender, including any defense based upon the failure of any
Disbursement to conform to the terms of the applicable Letter of
Credit (if, in the Issuer's reasonable and good faith opinion, such
non-conforming Disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds
of such Letter of Credit; provided, however, that nothing herein shall
-------- -------
adversely affect the right of the Borrower or such Lender, as the case
may be, to commence any proceeding against the Issuer for any wrongful
Disbursement made by the Issuer under a Letter of Credit as a result
of acts or omissions constituting gross negligence or wilful
misconduct on the part of the Issuer.
SECTION 2.8.4. Deemed Disbursements.
--------------------
(a) Upon the occurrence and during the continuation of any
Default of the type described in clauses (a) through (d) of Section
8.1.9 or, with notice from the Administrative Agent, upon the
occurrence and during the continuation of any Event of Default, the
Borrower shall be immediately obligated to pay to the Issuer an amount
equal to that portion of all Letter of Credit Outstandings
attributable to the then aggregate amount which is undrawn and
available under all issued and outstanding Letters of Credit. Any
amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as cash
collateral security in an interest bearing account for Obligations
arising in connection with Letters of Credit. At such time when such
Default or such Event of Default shall have been cured or waived (and
provided no other Default has occurred and is continuing and the Loans
have not been accelerated pursuant to Section 8.2 or 8.3), the
Administrative Agent shall promptly return to the Borrower all amounts
then on deposit with the Administrative Agent pursuant to this clause
(including accrued interest, net of account expenses), net of any
amount (including accrued interest) applied to the payment of any
Obligations.
(b) On any date when any reduction in the Commitment Amount
shall become effective, the Borrower shall be immediately obligated to
pay to the Issuer an amount equal to the excess, if any, of the
aggregate outstanding principal amount of all Loans and Letter of
Credit Outstandings over the Commitment Amount as so reduced. Any
amounts so payable by the Borrower pursuant to
this clause (b) shall be deposited in cash with the Administrative
Agent and held as cash collateral security for Obligations arising in
connection with Letters of Credit. At such time when the outstanding
principal amount of all Loans and Letter of Credit Outstandings are
less than the Commitment Amount, the Administrative Agent shall
promptly return to the Borrower an amount equal to such difference
(including accrued interest, net of account expenses), net of any
amount (including accrued interest) applied to the payment of any
Obligations.
SECTION 2.8.5. Nature of Reimbursement Obligations. The
-----------------------------------
Borrower and, to the extent set forth in Section 2.8.1, each Lender
shall assume all risks of the acts, omissions or misuse of any Letter
of Credit by the beneficiary thereof. None of the Issuer nor any
other Agent-Related Person (except to the extent of its own gross
negligence or wilful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any Letter of Credit or any
document submitted by any party in connection with the
application for and issuance of a Letter of Credit, even if it
should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any instrument transferring or
assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or the proceeds
thereof in whole or in part, which may prove to be invalid or
ineffective for any reason;
(c) failure of the beneficiary to comply fully with
conditions required in order to demand payment under a Letter
of Credit;
(d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, telecopy or
otherwise; or
(e) any loss or delay in the transmission or otherwise
of any document or draft required in order to make a
Disbursement under a Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of
any of the rights or powers granted to the Issuer or any other
Lender hereunder. In furtherance and extension and not in limitation
or derogation of any of the foregoing, any action taken or omitted to
be taken by the Issuer or any other Agent-Related Person in good faith
(and not constituting gross negligence or wilful misconduct) shall be
binding upon the Borrower and each such Lender, and shall not put the
Issuer or any other Agent-Related Person under any resulting liability
to the Borrower or any such Lender, as the case may be; provided,
--------
however, that nothing in this Section 2.8.5 shall adversely affect the
-------
rights of the Borrower under Section 2.8.3 to commence any proceeding
against the Issuer for any wrongful Disbursement made by the Issuer
under a Letter of Credit as a result of acts or omissions constituting
gross negligence or wilful misconduct on the part of the Issuer.
SECTION 2.9. Notes. Each Lender's Loans shall be evidenced
-----
by a Note payable to the order of such Lender in a maximum principal
amount equal to such Lender's Percentage of the original Commitment
Amount. The Borrower hereby irrevocably authorizes each Lender to
make (or cause to be made) appropriate notations on the grid attached
to such Lender's Notes (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the
outstanding principal of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall be
conclusive and binding on the Borrower absent manifest error;
provided, however, that the failure of any Lender to make any such
-------- -------
notations shall not limit or otherwise affect any Obligations of the
Borrower or any other Obligor.
ARTICLE III.
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. The Borrower shall
--------------------------
repay in full the unpaid principal amount of each Loan on the Stated
Maturity Date. Prior thereto, repayments and prepayments of Loans
shall be made as set forth in this Section 3.1. Each repayment or
prepayment of any Loans made pursuant to this Section 3.1 shall be
without premium or penalty, except as may be required by Section 4.4.
SECTION 3.1.1. Voluntary Prepayments. From time to time on
---------------------
any Business Day, the Borrower may make a voluntary prepayment, in
whole or in part, of the outstanding principal amount of any Loans;
provided, however, that
-------- -------
(a) any such prepayment shall be made pro rata among
--- ----
Loans of all Lenders of the same type and, if applicable,
having the same Interest Period;
(b) all such voluntary prepayments of (i) Reference Rate
Loans shall require a written notice prior to 12:00 p.m.,
Chicago, Illinois time, on the proposed date of prepayment but
no more than five Business Days' prior written notice to the
Administrative Agent and (ii) Eurodollar Rate Loans shall
require at least three but no more than five Business Days'
prior written notice to the Administrative Agent; provided,
--------
however, that the Administrative Agent shall, upon receipt of
-------
each notice of prepayment, give to each Lender prompt notice
thereof on the same day such notice of prepayment is received;
and
(c) all such voluntary partial prepayments shall be in
an aggregate minimum amount of $100,000 and an integral
multiple of $1,000;
provided, further, however, that any voluntary prepayment of principal
-------- ------- -------
of Loans shall not cause a reduction in the Commitment Amount.
SECTION 3.1.2. Mandatory Prepayments.
---------------------
(a) If the sum of (x) the aggregate outstanding
principal amount of all Loans plus (y) the Letter of Credit
Outstandings exceeds the lesser of (i) the Commitment Amount
and (ii) the Borrowing Base, the Borrower shall make a
mandatory prepayment of the aggregate outstanding principal
amount of the Loans in an amount equal to such excess. All
such prepayments shall be made pro rata among Loans of all
--- ----
Lenders of the same type and, if applicable, having the same
Interest Period. All prepayments of Loans pursuant to this
Section 3.1.2(a) shall, to the extent practicable, be first
applied to prepay Reference Rate Loans and then, if any funds
remain, to prepay Eurodollar Rate Loans. Unless a Default has
occurred and is continuing, the Borrower may select the
Eurodollar Rate Loans against which any such prepayments are
to be applied.
(b) On the Stated Maturity Date, the Borrower shall
repay the aggregate unpaid principal amount of all Loans then
outstanding.
(c) Immediately upon any acceleration of any Loans
pursuant to Section 8.2 or Section 8.3, the Borrower shall
repay the aggregate unpaid principal amount of all Loans then
outstanding.
SECTION 3.2. Interest Provisions. Interest on the
-------------------
outstanding principal amount of Loans shall accrue and be payable in
accordance with this Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
-----
Borrowing Request or Continuation/Conversion Notice, the Borrower may
elect that Loans comprising a Borrowing accrue interest at a rate per
annum:
(a) on that portion maintained from time to time as a
Reference Rate Loan, equal to the sum of the Alternate
Reference Rate in effect from time to time plus 0.50%; and
(b) on that portion maintained as a Eurodollar Rate
Loan, during each Interest Period applicable thereto, equal to
the sum of the Eurodollar Rate (Reserve Adjusted) for such
Interest Period as in effect from time to time plus 1.75%.
"Eurodollar Rate" means, for any Interest Period with respect
---------------
to Eurodollar Rate Loans, the rate of interest per annum at which
Dollar deposits for such Interest Period would be offered by BofA's
Grand Cayman Branch, Grand Cayman, B.W.I. (or such other office as may
be designated for such purpose by BofA), to major banks in the
offshore Dollar interbank market upon request of such banks at
approximately 11:00 a.m. (New York City time) two Business Days prior
to the commencement of such Interest Period.
"Eurodollar Rate (Reserve Adjusted)" means, for any Interest
----------------------------------
Period, with respect to Eurodollar Rate Loans, the rate of interest
per annum (rounded upward, if necessary, to the next 1/100th of 1%)
determined by the Administrative Agent as follows:
Eurodollar Rate (Reserve Adjusted) = Eurodollar Rate
------------------------
1.00 - Eurocurrency
Reserve Percentage.
Where,
"Eurocurrency Reserve Percentage" means for any day for any
-------------------------------
Interest Period the maximum reserve percentage
(expressed as a decimal, rounded upward, if necessary, to the
next 1/100th of 1%) in effect on such day (whether or not
applicable to any Lender) under regulations issued from time
to time by the F.R.S. Board for determining the maximum
reserve requirement (including any emergency, supplemental or
other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency
liabilities") having a term comparable to such Interest
Period.
The Eurodollar Rate (Reserve Adjusted) shall be adjusted
automatically as to all Eurodollar Rate Loans then outstanding as of
the effective date of any change in the Eurocurrency Reserve
Percentage.
All Eurodollar Rate Loans shall bear interest from and
including the first day of the applicable Interest Period to (but not
including) the last day of such Interest Period at the interest rate
determined as applicable to such Eurodollar Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any
-------------------
principal amount of any Loan or Reimbursement Obligation is due and
payable (whether on the Stated Maturity Date, upon acceleration or
otherwise), or after any other monetary obligation hereunder of the
Borrower shall have become due and payable, the Borrower shall pay,
but only to the extent permitted by law, interest (after as well as
before judgment) on such amount(s) at a rate per annum equal to the
rate then applicable to Reference Rate Loans plus a margin of 2.00%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan
-------------
shall be payable, without duplication:
(a) on the Stated Maturity Date;
(b) with respect to Reference Rate Loans, on the
Quarterly Payment Date following the date (or, if such date is
a Quarterly Payment Date, on such date) of any payment or
prepayment, in whole or in part, of principal outstanding on
such Loan;
(c) with respect to Eurodollar Rate Loans, on the date
of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan;
(d) with respect to Eurodollar Rate Loans, on the last
day of each applicable Interest Period and, if
earlier, on the three-month anniversary of the commencement of
such Interest Period; and
(e) on that portion of any Loans the maturity of which
is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under
this Agreement or any other Loan Document after the date such amount
is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set
----
forth in this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Letter of Credit Fees. (a) The Borrower
---------------------
agrees to pay to the Administrative Agent, for the account of the
Issuer, an issuance fee of 0.375% on the Stated Amount of each Letter
of Credit issued hereunder, payable upon the issuance thereof.
(b) The Borrower agrees to pay to the Administrative Agent,
for the pro rata account (based on Percentages) of each Lender
--- ----
(including the Issuer) a letter of credit commission in an amount
equal to 1.125% per annum on the average daily undrawn Stated Amount
of all Letters of Credit. Such letter of credit fee shall be payable
by the Borrower in arrears on each Quarterly Payment Date on the
Stated Expiry Date therefor and, if earlier, on the Commitment
Termination Date for the period from and including the date of the
issuance of such Letter of Credit to (but not including) the date such
payment is due or, if earlier, the date on which such Letter of Credit
expired or was terminated.
(c) The Borrower shall pay the Issuer from time to time the
normal issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of the Issuer relating to
letters of credit from time to time in effect.
SECTION 3.3.2. Non-Use Fee. The Borrower agrees to pay to
-----------
the Administrative Agent, for the account of each Lender, a non-use
fee in an amount equal to 0.375% per annum on the daily average of the
unutilized portion of such Lender's Commitment. Such non-use fee
shall be payable in arrears on each Quarterly Payment Date and on the
Commitment Termination Date, for the period then ending for which such
non-use fees shall not have
been theretofore paid. For purposes of computing such non-use fee,
the Commitments shall be deemed to be used in an amount equal to the
sum of the average daily principal amount of all outstanding Loans
plus the average daily Stated Amount of all outstanding Letters of
Credit.
ARTICLE IV.
EURODOLLAR RATE AND OTHER PROVISIONS
SECTION 4.1. Eurodollar Rate Lending Unlawful. If any Lender
--------------------------------
shall determine in good faith (which determination shall, upon notice
thereof to the Borrower and the Lenders, be conclusive and binding on
the Borrower) that the introduction of or any change in or in the
interpretation of any law makes it unlawful, or any central bank or
other Governmental Authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Loan as, or to convert any
Loan into, a Eurodollar Rate Loan, the obligations of the Lenders to
make, continue, maintain or convert into any such Loans shall, upon
such determination, forthwith be suspended until such Lender shall
notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all Eurodollar Rate Loans shall
automatically convert into Reference Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required
by such law or assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative
--------------------
Agent shall have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to BofA in its
relevant market; or
(b) by reason of circumstances affecting BofA's
relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to Eurodollar Rate
Loans,
then, upon notice from the Administrative Agent to the Borrower and
the Lenders, the obligations of all Lenders under Section 2.5 and
Section 2.6 to make or continue any Loans as, or to convert any Loans
into, Eurodollar Rate Loans shall forthwith be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased Eurodollar Rate Loan Costs, etc. The
------------------------------------------
Borrower agrees to reimburse each Lender for any increase in the cost
to such Lender of, or any reduction in the amount of any sum
receivable by such Lender in respect of, making, continuing or
maintaining (or of its obligation to make, continue or maintain) any
Loans as, or of converting (or of its obligation to convert) any Loans
into, Eurodollar Rate Loans. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of
any such event, such notice to state, in reasonable detail, the
reasons therefor and the additional amount required fully to
compensate such Lender for such increased cost or reduced amount.
Such additional amounts shall be payable by the Borrower directly to
such Lender within five days of its receipt of such notice, and such
notice shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender 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 Lender to make, continue or maintain any portion of
the principal amount of any Loan as, or to convert any portion of the
principal amount of any Loan into, a Eurodollar Rate Loan) as a result
of
(a) any conversion or repayment or prepayment of the
principal amount of any Eurodollar Rate Loans on a date other
than the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Section 3.1 or otherwise;
(b) any Loans not being made as Eurodollar Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into,
Eurodollar Rate Loans in accordance with the
Continuation/Conversion Notice therefor,
then, upon the written notice of such Lender to the Borrower (with a
copy to the Administrative Agent), the Borrower shall, within five
days of its receipt thereof, pay directly to such Lender such amount
as will (in the reasonable determination of such Lender) reimburse
such Lender for 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 on the Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or
-----------------------
the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive,
guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental
Authority affects or would affect the amount of capital required or
expected to be maintained by any Lender or any Person controlling such
Lender, and such Lender determines (in its sole and absolute
discretion) that the rate of return on its or such controlling
Person's capital as a consequence of its Commitment, issuance or
maintenance of or participation in Letters of Credit or the Loans made
by such Lender, is reduced to a level below that which such Lender or
such controlling Person could have achieved but for the occurrence of
any such circumstance, then, in any such case, upon notice from time
to time by such Lender to the Borrower, the Borrower shall immediately
pay directly to such Lender additional amounts sufficient to
compensate such Lender or such controlling Person for such reduction
in rate of return. A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such amount,
such Lender may use any method of averaging and attribution that it
(in its sole and absolute discretion) shall deem applicable.
SECTION 4.6. Taxes. All payments by the Borrower of
-----
principal of, and interest on, the Loans and all other amounts payable
hereunder shall be made free and clear of and without deduction for
any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding franchise
taxes and taxes imposed on or measured by any Lender's net income or
receipts (such non-excluded items being called "Taxes"). In the event
-----
that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will
(a) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent evidencing such payment to such
authority; and
(c) pay to the Administrative Agent for the account of
the Lenders such additional amount or amounts as is necessary
to ensure that the net amount actually received by each Lender
will equal the full amount such Lender would have received had
no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the
Administrative Agent or any Lender with respect to any payment
received by the Administrative Agent or such Lender hereunder, the
Administrative Agent or such Lender may pay such Taxes and the
Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net
amount received by such Person after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount
such Person would have received had not such Taxes been asserted.
If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative
Agent, for the account of the respective Lenders, the required
receipts or other required documentary evidence, the Borrower shall
indemnify the Lenders for any incremental Taxes, interest or penalties
that may become payable by any Lender as a result of any such failure.
For purposes of this Section 4.6, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any Lender
shall be deemed a payment by the Borrower.
Upon the request of the Borrower or the Administrative Agent,
each Lender that is organized under the laws of a jurisdiction other
than the United States shall, prior to the due date of any payments
under the Notes, execute and deliver to the Borrower and the
Administrative Agent, on or about the first scheduled payment date in
each Fiscal Year, one or more (as the Borrower or the Administrative
Agent may reasonably request) United States Internal Revenue Service
Forms 4224 or Forms 1001 or such other forms or documents (or
successor forms or documents), appropriately completed, as may be
applicable to establish the extent, if any, to which a payment to such
Lender is exempt from withholding or deduction of Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise
---------------------------
expressly provided, all payments by the Borrower pursuant to this
Agreement, the Notes, each Letter of Credit or any other Loan Document
shall be made by the Borrower to the Administrative Agent for the pro
---
rata account of the Lenders entitled to receive such payment. All
----
such payments required to
be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 1:00 p.m., Chicago, Illinois
time, on the date due, in same day or immediately available funds, to
such account as the Administrative Agent shall specify from time to
time by notice to the Borrower. Funds received after that time shall
be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly
remit in same day funds to each Lender its share, if any, of such
payments received by the Administrative Agent for the account of such
Lender. All interest and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last
day) occurring during the period for which such interest or fee is
payable over a year comprised of 360 days (or, in the case of interest
on a Reference Rate Loan bearing interest at the rate specified in
clause (b) of the definition of "Alternate Reference Rate", 365 days
------------------------
or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment
shall (except as otherwise required by the definition of "Quarterly
---------
Payment Date" and, with respect to Eurodollar Rate Loans, by clause
------------
(c) of the definition of the term "Interest Period") be made on the
---------------
next succeeding Business Day, and such extension of time shall be
included in computing interest and fees, if any, in connection with
such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain
-------------------
any payment or other recovery (whether voluntary, involuntary, by
application of setoff or otherwise) on account of any Loan (other than
pursuant to the terms of Sections 4.3, 4.4 and 4.5) or Letter of
Credit in excess of its ratable share of such payment in accordance
with the terms of this Agreement, then or therewith obtained by all
Lenders, such Lender shall purchase from the other Lenders such
participations in Loans made by them and/or Letters of Credit as shall
be necessary to cause such purchasing Lender to share the excess
payment or other recovery ratably with each of them; provided,
--------
however, that if all or any portion of the excess payment or other
-------
recovery is thereafter recovered from such purchasing Lender, the
purchase shall be rescinded and each Lender which has sold a
participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery,
together with an amount equal to such selling Lender's ratable share
(according to the proportion of
(a) the amount of such selling Lender's required
repayment to the purchasing Lender
to
(b) the total amount so recovered from the purchasing
Lender)
of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section may, to the fullest extent permitted
by law, exercise all its rights of payment (including pursuant to
Section 4.9) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or
other similar law any Lender receives a secured claim in lieu of a
setoff to which this Section applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this
Section to share in the benefits of any recovery on such secured
claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence
------
of any Default described in clauses (a) through (d) of Section 8.1.9
with respect to the Borrower or any Subsidiary or any Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security
for such Obligations) the Borrower hereby grants to each Lender a
continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter
maintained with or otherwise held by such Lender; provided, however,
-------- -------
that any such appropriation and application shall be subject to the
provisions of Section 4.8. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and
application made by such Lender; provided, however, that the failure
-------- -------
to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Lender may have.
ARTICLE V.
CONDITIONS PRECEDENT
SECTION 5.1. Restatement Date. This Agreement shall become
----------------
effective on the date (the "Restatement Date") each of the
----------------
conditions precedent set forth in this Section 5.1 has been satisfied.
SECTION 5.1.1. Resolutions, etc. The Administrative Agent
----------------
shall have received from each Obligor a certificate, dated the
Restatement Date, of its Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full
force and effect authorizing the execution, delivery and
performance of this Agreement, the Notes and each other Loan
Document executed or to be executed by it;
(b) the incumbency and signatures of those of its
officers authorized to act with respect to this Agreement, the
Notes and each other Loan Document executed by it; and
(c) each of its Organic Documents (or, in lieu of
providing copies of such Organic Documents, to the effect that
none of such Organic Documents has been amended since such
Organic Documents were delivered to the Administrative Agent
in connection with the closing of the Existing Credit
Agreement),
upon which certificate each Lender may conclusively rely until it
shall have received a further certificate of the Secretary of such
Obligor canceling or amending such prior certificate.
SECTION 5.1.2. Delivery of Notes. The Administrative Agent
-----------------
shall have received, for the account of each Lender, its Note, duly
executed and delivered by the Borrower.
SECTION 5.1.3. No Material Adverse Change. Immediately prior
--------------------------
to the Restatement Date and immediately after giving effect to this
Agreement and to the consummation of the transactions contemplated by
this Agreement, there shall not have been any material adverse change
in the financial condition, operations, assets, business, properties
or prospects of the Borrower and its Subsidiaries as measured by the
financial statements delivered pursuant to Section 6.5.
SECTION 5.1.4. Restatement Date Certificate. The
----------------------------
Administrative Agent shall have received the Restatement Date
Certificate, dated the Restatement Date and duly executed by an
Authorized Officer of the Borrower, in which such Restatement Date
Certificate all Obligors (as of the Restatement Date) shall have
represented and warranted that the statements made therein
are true and correct as of the Restatement Date and, at the time such
certificate is delivered, the Administrative Agent and the Lenders
shall, in their reasonable discretion, be satisfied that such
statements shall in fact be true and correct.
SECTION 5.1.5. Financial Information, etc. The
--------------------------
Administrative Agent shall have received, in each case in form and
scope reasonably satisfactory to the Administrative Agent,
(a) audited consolidated financial statements of
Holdings for the Fiscal Year ended June 30, 1996; and
(b) an unaudited pro forma consolidated balance sheet,
--- -----
dated as of June 30, 1996, and to the extent practicable,
September 30, 1996 (the "Pro Forma Balance Sheet") of Holdings
-----------------------
and its Subsidiaries, after giving effect to the acquisitions
of ABC and Any-Kind and the Proposed Acquisitions, the
incurrence of the Senior Notes and the transactions
contemplated hereby at such date, and showing compliance with
the covenants set forth in Section 7.2.4 to the extent
determinable by such financial statements, in form and
substance reasonably satisfactory to the Administrative Agent.
Each such financial statement shall be prepared in accordance with
GAAP, with the scope and results of all such financial statements
being satisfactory to the Administrative Agent.
SECTION 5.1.6. Opinions of Counsel. The Administrative Agent
-------------------
shall have received opinions, dated the Restatement Date and addressed
to the Administrative Agent and all Lenders, from (i) Weil, Gotshal &
Manges LLP, special counsel to the Borrower and the other Obligors,
substantially in the form of Exhibit G-1 hereto and (ii) Jodi
Mignatti, Esq., general counsel of the Borrower and the other
Obligors, substantially in the form of Exhibit G-2 hereto.
SECTION 5.1.7. Obligors. (a) All Obligors party to any Loan
--------
Document prior to the date hereof shall have executed a counterpart of
the Reaffirmation of Loan Documents in the form of Exhibit D.
(b) The Borrower's Subsidiaries Monetary Management Corp. and
U.S. Check Exchange Limited Partnership shall have executed and
delivered to the Administrative Agent a counterpart to the Cash Field
Warehousing Agreement, a counterpart to the Subsidiary Guaranty and a
Supplement to the Subsidiary Security Agreement in the form of Exhibit
E thereto.
SECTION 5.1.8. Solvency, etc. The Administrative Agent shall
-------------
have received a certificate of the chief accounting, financial or
other executive Authorized Officer of the Borrower, dated the
Restatement Date, substantially in the form of Exhibit C.
SECTION 5.1.9. Fees and Expenses. The Administrative Agent
-----------------
shall have received, for its own account and the account of the
Lenders, all expenses payable pursuant to Section 10.3 and pursuant to
that certain fee letter dated October 23, 1996 executed by the
Borrower in favor of the Administrative Agent and certain Lenders.
SECTION 5.1.10. Senior Notes Indenture and Registration
---------------------------------------
Rights Agreement. The Administrative Agent shall have received a
----------------
copy, certified as true and correct by the Secretary of the Borrower,
of the Senior Notes Indenture and the Registration Rights Agreement.
SECTION 5.1.11. Existing Credit Agreement. All Indebtedness
-------------------------
under the Existing Credit Agreement shall be paid in full.
SECTION 5.1.12. Senior Notes. The Administrative Agent shall
------------
have received evidence satisfactory to it that the Borrower has issued
the Senior Notes on terms and conditions satisfactory to the
Administrative Agent for gross proceeds of not less than $110,000,000.
SECTION 5.1.13. Proposed Acquisitions. The Administrative
---------------------
Agent shall have received copies, certified by an Authorized Officer
of the Borrower, of definitive purchase documentation for the Proposed
Acquisitions.
SECTION 5.2. All Credit Extensions. The obligation of each
---------------------
Lender to make any Credit Extension shall be subject to the
satisfaction of each of the conditions precedent set forth in this
Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc.
-------------------------------------------
Both before and after giving effect to any Credit Extension the
following statements shall be true and correct to the satisfaction of
the Administrative Agent:
(a) the representations and warranties set forth in
Article VI (excluding, however, those contained in
Section 6.7), Article III of the Subsidiary Guaranty, Article
III of the Holdings Guaranty and Pledge
Agreement, Article III of the Borrower Pledge Agreement,
Article III of the Borrower Security Agreement and Article III
of the Subsidiary Security Agreement shall be true and correct
in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which
case such representations and warranties shall be true and
correct as of such earlier date);
(b) except as disclosed by the Borrower to the
Administrative Agent and the Lenders pursuant to Section 6.7
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding shall be pending
or, to the knowledge of the Borrower, threatened against
the Borrower or any of its Subsidiaries which might
materially adversely affect the Borrower's consolidated
business, operations, assets, revenues, properties or
prospects or which purports to affect the legality,
validity or enforceability of this Agreement, the Notes
or any other Loan Document; and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section
6.7 which might materially adversely affect the
consolidated businesses, operations, assets, revenues,
properties or prospects of the Borrower and its
Subsidiaries; and
(c) no Default shall have then occurred and be
continuing, and neither the Borrower, any other Obligor nor
any of the Borrower's Subsidiaries are in material violation
of any law, governmental regulation or court order or decree.
SECTION 5.2.2. Credit Request. The Administrative Agent
--------------
shall have received a Borrowing Request or an Issuance Request, as
applicable, for such Credit Extension, together with a Borrowing Base
Certificate. Each of the delivery of a Borrowing Request or an
Issuance Request and a Borrowing Base Certificate and the acceptance
by the Borrower of the proceeds of the Borrowing or the issuance of
the Letter of Credit, as applicable, shall constitute a representation
and warranty by the Borrower that on the date of such Borrowing (both
immediately before and after giving effect to such Borrowing and the
application of the
proceeds thereof) or the issuance of the Letter of Credit, as
applicable, the statements made in Section 5.2.1 are true and correct
and that all items reflected on such Borrowing Base Certificate
satisfy the eligibility criteria for inclusion on such certificate.
SECTION 5.2.3. Satisfactory Legal Form. All documents
-----------------------
executed or submitted pursuant hereto by or on behalf of the Borrower
or any of its Subsidiaries or any other Obligors shall be satisfactory
in form and substance to the Administrative Agent and its counsel, and
the Administrative Agent and its counsel shall have received all
information, approvals, opinions, documents or instruments as the
Administrative Agent or its counsel may reasonably request.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to
enter into this Agreement and to induce the Lenders to make Credit
Extensions hereunder, the Borrower represents and warrants unto the
Administrative Agent and each Lender as set forth in this Article VI.
SECTION 6.1. Organization, etc. The Borrower and each of
-----------------
its Subsidiaries is a corporation validly organized and existing and
in good standing under the laws of the jurisdiction of its
incorporation, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where the
nature of its business requires such qualification, and has full power
and authority and holds all requisite governmental licenses, permits
and other approvals to enter into and perform its Obligations under
this Agreement (except to the extent the failure to be so qualified or
to have any such license, permit or other approval would not have a
material adverse effect on the financial condition, operations,
assets, business or properties of the Borrower or any of its
Subsidiaries), the Notes and each other Loan Document to which it is a
party and to own and hold under lease its property and to conduct its
business as currently conducted by it.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The
-----------------------------------------
execution, delivery and performance by the Borrower of this
Agreement, the Notes and each other Loan Document executed or to be
executed by it, and the execution, delivery and performance by each
other Obligor of each Loan Document executed or to be executed by it
are within the Borrower's and such Obligor's
corporate powers, have been duly authorized by all necessary corporate
action, and do not
(a) contravene the Borrower's or any such Obligor's
Organic Documents;
(b) contravene any contractual restriction, law,
governmental regulation or court decree or order binding on or
affecting the Borrower or any Obligor; or
(c) result in, or require the creation or imposition of,
any Lien on any of the Borrower's or any Obligor's properties
(other than Liens permitted under Section 7.2.3).
SECTION 6.3. Government Approval, Regulation, etc. No
------------------------------------
authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority or regulatory body or other
Person is required for the due execution, delivery or performance by
the Borrower or any other Obligor of this Agreement, the Notes or any
other Loan Document to which it is a party, all of which have been
duly obtained or made and are in full force and effect. Neither the
Borrower nor any of its Subsidiaries is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a "holding company",
or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes,
-------------
and the Notes and each other Loan Document executed by the Borrower
will, on the due execution and delivery thereof, constitute, the
legal, valid and binding obligations of the Borrower enforceable in
accordance with their respective terms; and each Loan Document
executed pursuant hereto by each other Obligor will, on the due
execution and delivery thereof by such Obligor, be the legal, valid
and binding obligation of such Obligor enforceable in accordance with
its terms.
SECTION 6.5. Financial Information. All financial statements
---------------------
of the Borrower and each of its Subsidiaries furnished to the
Administrative Agent and the Lenders pursuant to Section 5.1.5 and
Section 7.1.1 have been prepared in accordance with GAAP consistently
applied, and present fairly in all material respects the consolidated
financial condition of the Persons covered thereby as at the dates
thereof and the results of their operations for the periods then
ended.
SECTION 6.6. No Material Adverse Change. Since June 30, 1996
--------------------------
there has been no material adverse change in the financial condition,
operations, assets, business, properties or prospects of the Borrower
and its Subsidiaries.
SECTION 6.7. Litigation, Labor Controversies, etc. There
------------------------------------
is no pending or, to the knowledge of the Borrower, threatened
litigation, action, proceeding, or labor controversy (including those
related to any Consumer Credit Law) affecting the Borrower or any of
its Subsidiaries, or any of their respective properties, businesses,
assets or revenues, which is reasonably likely to materially adversely
affect the financial condition, operations, assets, business,
properties or prospects of the Borrower or any Subsidiary or which
purports to affect the legality, validity or enforceability of this
Agreement, the Notes or any other Loan Document, except as disclosed
in Item 6.7 ("Litigation") of the Disclosure Schedule.
SECTION 6.8. Subsidiaries. The Borrower has no Subsidiaries,
------------
except those Subsidiaries
(a) which are identified in Item 6.8 ("Existing
Subsidiaries") of the Disclosure Schedule; or
(b) which are permitted to have been acquired in
accordance with Section 7.2.5 or 7.2.9.
Each of Borrower's Subsidiaries Dollar Financial Insurance Corp. and
Dollar Insurance Administration Corp. (collectively, the "New
---
Subsidiaries"), conducts no business, has not issued any capital stock
------------
and has no real or personal property or tangible or intangible assets
as of the date hereof and the Restatement Date.
SECTION 6.9. Ownership of Properties. The Borrower and each
-----------------------
of its Subsidiaries owns good and legal title to all of its properties
and assets, real and personal, tangible and intangible, of any nature
whatsoever (including patents, trademarks, trade names, service marks
and copyrights), free and clear of all Liens, charges or claims
(including infringement claims with respect to patents, trademarks,
copyrights and the like) except as permitted pursuant to Section
7.2.3.
SECTION 6.10. Taxes. The Borrower and each of its
-----
Subsidiaries has filed all tax returns and reports required by law to
have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are
being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. During the twelve
-------------------------
-consecutive-month period prior to the date of the execution and
delivery of this Agreement and prior to the date of any Credit
Extension hereunder, no steps have been taken to terminate any Pension
Plan which could reasonably be expected to result in the incurrence by
the Borrower of any material liability, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise
to a Lien under section 302(f) of ERISA. No condition exists or event
or transaction has occurred with respect to any Pension Plan which
could reasonably be expected to result in the incurrence by the
Borrower of any material liability, fine or penalty. Except as
disclosed in Item 6.11 ("Employee Benefit Plans") of the Disclosure
Schedule, the Borrower does not have any contingent liability with
respect to any post-retirement medical benefit under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of
Title I of ERISA.
SECTION 6.12. Environmental Warranties. Except as set forth
------------------------
in Item 6.12 ("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its
Subsidiaries have been, and continue to be, owned or leased by
the Borrower and its Subsidiaries in material compliance with
all Environmental Laws;
(b) there have been no past, and there are no pending or
threatened
(i) claims, complaints, notices or requests for
information received by the Borrower or any of its
Subsidiaries with respect to any alleged violation of any
Environmental Law, or
(ii) complaints, notices or inquiries to the
Borrower or any of its Subsidiaries regarding potential
liability under any Environmental Law;
(c) there have been no Releases of Hazardous Materials
at, on or under any property now or previously owned or leased
by the Borrower or any of its Subsidiaries that, singly or in
the aggregate, have, or may reasonably be expected to have, a
material adverse
effect on the financial condition, operations, assets,
business, properties or prospects of the Borrower and its
Subsidiaries;
(d) the Borrower and its Subsidiaries have been issued
and are in material compliance with all permits, certificates,
approvals, licenses and other authorizations relating to
environmental matters and necessary or desirable for their
businesses;
(e) no property now or previously owned or leased by the
Borrower or any of its Subsidiaries is listed or proposed for
listing (with respect to owned property only) on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list of sites requiring investigation or clean-
up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any
property now or previously owned or leased by the Borrower or
any of its Subsidiaries that, singly or in the aggregate,
have, or may reasonably be expected to have, a material
adverse effect on the financial condition, operations, assets,
business, properties or prospects of the Borrower and its
Subsidiaries;
(g) neither the Borrower nor any Subsidiary of the
Borrower has directly transported or directly arranged for the
transportation of any Hazardous Material to any location which
is listed or proposed for listing on the National Priorities
List pursuant to CERCLA, on the CERCLIS or on any similar
state list or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to
material claims against the Borrower or such Subsidiary
thereof for any remedial work, damage to natural resources or
personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously owned or
leased by the Borrower or any Subsidiary of the Borrower that,
singly or in the aggregate, have, or may reasonably be
expected to have, a material adverse effect on the financial
condition, operations, assets, business, properties or
prospects of the Borrower and its Subsidiaries; and
(i) no condition exists at, on or under any property now
or previously owned or leased by the Borrower which, with the
passage of time, or the giving of notice or both, would give
rise to liability under any Environmental Law that, singly or
in the aggregate, has, or may reasonably be expected to have,
a material adverse effect on the financial condition,
operations, assets, business or properties of the Borrower and
its Subsidiaries, taken as a whole.
SECTION 6.13. Regulations G, T, U and X. The Borrower is not
-------------------------
engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Loans will
be used for a purpose which violates, or would be inconsistent with,
F.R.S. Board Regulation G, T, U or X. Terms for which meanings are
provided in F.R.S. Board Regulation G, T, U or X or any regulations
substituted therefor, as from time to time in effect, are used in this
Section with such meanings.
SECTION 6.14. Accuracy of Information. All factual
-----------------------
information heretofore or contemporaneously furnished by or on behalf
of the Borrower in writing to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender will be, true and accurate in every
material respect on the date as of which such information is dated or
certified and as of the date of execution and delivery of this
Agreement by the Administrative Agent and such Lender, and such
information is not, or shall not be, as the case may be, incomplete by
omitting to state any material fact necessary to make such information
not misleading.
SECTION 6.15. Consumer Credit. Except as set forth in Item
---------------
6.15 ("Consumer Matters") of the Disclosure Schedule, and without
limiting the generality of Section 6.7 or Section 6.16, there has been
no past, and there is no pending or threatened, litigation, action,
proceeding or controversy affecting the Borrower or any of its
Subsidiaries, and no pending or threatened complaint, notice or
inquiry to the Borrower or any of its Subsidiaries, regarding
potential liability of the Borrower, any Subsidiary or Affiliate of
the Borrower or any officer, director, agent or employee of the
Borrower, or any Subsidiary or Affiliate of the Borrower under or
arising from any Consumer Credit Law which is reasonably likely to
have a material adverse effect on the financial condition, operations,
assets, business or properties of the Borrower or any of its
Subsidiaries; and, to
the knowledge of the Borrower, no fact or situation exists that could
form the basis for any such litigation, action, proceeding,
controversy, complaint, notice or inquiry. The Borrower and each of
its Subsidiaries is in compliance with all applicable requirements or
conditions imposed by all applicable Consumer Credit Laws, except
where the failure to so be in compliance would not have a material
adverse effect on the financial condition, operations, assets,
business or properties of the Borrower or any of its Subsidiaries.
SECTION 6.16. Compliance with Laws. The Borrower and each of
--------------------
its Subsidiaries (a) is in substantial compliance with all applicable
laws, rules and regulations promulgated by any Governmental Authority
(including all applicable Consumer Credit Laws), the failure to comply
with which would be reasonably likely to have a material adverse
effect on the financial condition, operations, assets, business,
properties or prospects of the Borrower and its Subsidiaries, and (b)
is not in default under any federal, state or local court decree or
order.
SECTION 6.17. Solvency. As of the Restatement Date and
--------
immediately prior to and after giving effect to any Borrowing
hereunder and the use of the proceeds thereof, (a) the Borrower's
assets will exceed its liabilities and (b) the Borrower will be
solvent, will be able to pay its debts as they mature, will own
property with fair saleable value greater than the amount required to
pay its debts and will have capital sufficient to carry on its
business as then constituted.
SECTION 6.18. Borrowing Base. Each item identified on a
--------------
Borrowing Base Certificate satisfies the requirements for eligibility
set forth in the definition of "Borrowing Base" as of the time such
Borrowing Base Certificate is delivered.
ARTICLE VII.
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with
---------------------
the Administrative Agent and each Lender that, until all Commitments
have terminated and all Obligations have been paid and performed in
full, the Borrower will perform the obligations set forth in this
Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc.
--------------------------------------------
The Borrower will furnish, or will cause to be furnished, to each
Lender and the Administrative Agent copies of the following financial
statements, reports, notices and information:
(a) as soon as available and in any event within 90 days
after the end of each Fiscal Year of the Borrower,
(i) audited consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such
Fiscal Year and related audited consolidated statements
of income and cash flows for the Borrower and its
Subsidiaries for such Fiscal Year, certified (without any
Impermissible Qualification) in a manner acceptable to
the Administrative Agent and the Required Lenders by
Ernst & Young LLP or other independent public accountants
acceptable to the Administrative Agent and the Required
Lenders; and
(ii) a certificate from such accountants to the
effect that, in making the examination necessary for the
signing of such audited consolidated balance sheets and
statements of income and cash flows by such accountants,
they have not become aware of any Default that has
occurred and is continuing, or, if they have become aware
of such Default, describing the steps, if any, being
taken to cure it;
(b) as soon as available and in any event within 45 days
after the end of each Fiscal Quarter of the Borrower, a
Compliance Certificate, executed by the chief financial
Authorized Officer of the Borrower;
(c) as soon as possible and in any event within 30 days
after the end of each calendar month, an unaudited balance
sheet and unaudited consolidated statements of income and cash
flows of the Borrower and its Subsidiaries as of the end of
such calendar month for such month and for the period
commencing at the end of the previous Fiscal Year and ending
with the end of such calendar month, certified by the chief
financial Authorized Officer of Borrower, together with
comparative entries from the annual budget then in effect
reflecting any variance from the amounts contained in the
annual budget for such calendar month (as updated pursuant to
clause (e) below) and for the period commencing at the end of
the previous Fiscal Year and ending with the end of such
calendar month and a report setting forth revenues and EBITDA
by division in form and substance similar to the reports
delivered to the Lenders in connection with the Original
Credit Agreement;
(d) not later than 30 days subsequent to the end of each
Fiscal Year of the Borrower, an annual business plan and
budget prepared on a calendar month basis, for the immediately
succeeding Fiscal Year in form, scope and substance reasonably
acceptable to the Administrative Agent;
(e) not later than 60 days after the closing of any
Permitted Acquisition, an update to the business plan and
budget delivered pursuant to clause (d) above, prepared on a
calendar month basis giving effect to such Permitted
Acquisition, as applicable, in form, scope and substance
reasonably acceptable to the Administrative Agent;
(f) as soon as possible and in any event within three
days after the occurrence of each Default, a statement of the
chief financial Authorized Officer of the Borrower setting
forth details of such Default and the action which the
Borrower has taken and proposes to take with respect thereto;
(g) as soon as possible and in any event within five
Business Days after (x) the occurrence of any adverse
development with respect to any litigation, action, proceeding
or labor controversy described in Section 6.7 or (y) the
commencement of any labor controversy, litigation, action or
proceeding of the type described in Section 6.7, notice
thereof and copies of all documentation relating thereto;
(h) promptly after the sending or filing thereof, copies
of all reports which the Borrower sends to any of its security
holders, and all reports and registration statements which the
Borrower or any of its Subsidiaries files with the Securities
and Exchange Commission or any national securities exchange;
(i) promptly from time to time, copies of any notices
(including notices of default or acceleration) received from
any holder or trustee of, under or with respect to the Senior
Notes;
(j) on the first Business Day of each month, a Borrowing
Base Certificate completed as of such day;
(k) immediately upon becoming aware of the institution
of any steps by the Borrower or any other Person to terminate
any Pension Plan, or the failure to
make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under section
302(f) of ERISA, or the taking of any action with respect to a
Pension Plan which could result in the requirement that the
Borrower furnish a bond or other security to the PBGC or such
Pension Plan, or the occurrence of any event with respect to
any Pension Plan which could result in the incurrence by the
Borrower of any material liability, fine or penalty, or any
material increase in the contingent liability of the Borrower
with respect to any post-retirement Welfare Plan benefit,
notice thereof and copies of all documentation relating
thereto; and
(l) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of
its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. The Borrower will,
-------------------------
and will cause each of its Subsidiaries to, comply in all material
respects with all applicable laws, rules, regulations and orders
promulgated by any Governmental Authority (including all Consumer
Credit Laws), such compliance to include:
(a) the maintenance and preservation of its corporate
existence and qualification as a foreign corporation; and
(b) the payment, before the same become delinquent, of
all taxes, assessments and governmental charges imposed upon
it or upon its property except to the extent being diligently
contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have
been set aside on its books.
SECTION 7.1.3. Maintenance of Properties. The Borrower will,
-------------------------
and will cause each of its Subsidiaries to, maintain, preserve,
protect and keep its properties in good repair, working order and
condition, and make necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith
may be properly conducted at all times unless the Borrower determines
in good faith that the continued maintenance of any of its properties
is no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower will, and will cause
---------
each of its Subsidiaries to, maintain or cause to be maintained with
responsible insurance companies insurance with respect to its
properties and business (including business interruption insurance)
against such casualties and contingencies and of such types and in
such amounts as is customary in the case of similar businesses and
will, upon request of the Administrative Agent, furnish to each Lender
at reasonable intervals a certificate of an Authorized Officer of the
Borrower setting forth the nature and extent of all insurance
maintained by the Borrower and its Subsidiaries in accordance with
this Section.
SECTION 7.1.5. Books and Records. The Borrower will, and
-----------------
will cause each of its Subsidiaries to, keep books and records which
accurately reflect all of its business affairs and transactions and
permit the Administrative Agent and each Lender or any of their
respective representatives, at reasonable times and intervals, to
visit all of its offices, to discuss its financial matters with its
officers and independent public accountant (and the Borrower hereby
authorizes such independent public accountant to discuss the
Borrower's financial matters with each Lender or its representatives
whether or not any representative of the Borrower is present) and to
examine (and, at the expense of the Borrower, photocopy extracts from)
any of its books or other corporate records. The Borrower shall pay
any fees of such independent public accountant incurred in connection
with the Administrative Agent's or any Lender's exercise of its rights
pursuant to this Section.
SECTION 7.1.6. Environmental Covenant. The Borrower will,
----------------------
and will cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties
in material compliance with all Environmental Laws, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and
remain in material compliance therewith, and handle all
Hazardous Materials in material compliance with all applicable
Environmental Laws;
(b) immediately notify the Administrative Agent and
provide copies upon receipt of all written claims, complaints,
notices or inquiries relating to the condition of its
facilities and properties or compliance with Environmental
Laws; and
(c) provide such information and certifications which
the Administrative Agent may reasonably request from time to
time to evidence compliance with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Upon any Person becoming
-------------------
a Subsidiary of the Borrower, or upon the Borrower or any Subsidiary
acquiring additional capital stock of, or partnership, ownership or
similar equity interest in, any existing Subsidiary, or upon any New
Subsidiary commencing to conduct business, issuing any shares of stock
or holding any property (real or personal) or assets (tangible or
intangible) the Borrower shall notify the Administrative Agent of such
event, and, unless otherwise agreed to between the Borrower and the
Administrative Agent,
(a) such Person, if it is a Domestic Subsidiary, shall
become a party to the Subsidiary Guaranty pursuant to Section
5.12 thereof in a manner satisfactory to the Administrative
Agent;
(b) the Borrower (and, if any such Subsidiary, or any
Subsidiary of such Subsidiary, has any Subsidiaries and is a
Domestic Subsidiary, each such Subsidiary owning any
Subsidiary) shall, pursuant to the Borrower Pledge Agreement,
pledge to the Administrative Agent, for its benefit and that
of the Lenders, (i) all of the outstanding shares of such
capital stock of such Subsidiary owned or held by such Person
(65% of the outstanding shares of such capital stock if the
Subsidiary pledged is a Foreign Subsidiary), along with
undated stock powers for such certificates, executed in blank
(or, if any such shares of capital stock are uncertificated,
confirmation and evidence satisfactory to the Administrative
Agent that the security interest in such uncertified
securities has been perfected by the Administrative Agent, for
its benefit and that of the Lenders, in accordance with the
Uniform Commercial Code, or any similar law which may be
applicable), and (ii) any promissory notes evidencing
intercompany indebtedness;
(c) such Person, if it is a Domestic Subsidiary, shall
become a party to the Subsidiary Security Agreement pursuant
to Section 7.6 thereof in a manner satisfactory to the
Administrative Agent;
(d) such Person, if it is a Domestic Subsidiary, shall
have delivered to the Administrative Agent
acknowledgment copies of properly filed Uniform Commercial
Code financing statements (Form UCC-1) or such other evidence
of filing as may be acceptable to the Administrative Agent,
naming such Person as the debtor and the Administrative Agent
as the secured party, or other similar instruments or
documents, filed under the Uniform Commercial Code of all
jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security
interest of the Administrative Agent in the collateral of such
Person pursuant to the Subsidiary Security Agreement;
(e) such Person shall have delivered to the
Administrative Agent executed copies of proper Uniform
Commercial Code Form UCC-3 termination statements, if any,
necessary to release all Liens and other rights of any other
Person in any collateral described in the Subsidiary Security
Agreement, together with such other Uniform Commercial Code
Form UCC-3 termination statements as the Administrative Agent
may reasonably request from such Person;
(f) such Person shall have delivered to the
Administrative Agent certified copies of Uniform Commercial
Code Requests for Information or Copies (Form UCC-11), or a
similar search report certified by a party acceptable to the
Administrative Agent, dated a date satisfactory to the
Administrative Agent, listing all effective financing
statements which name such Person (under its present name and
any previous names) as the debtor and which are filed in the
jurisdictions in which filings were made pursuant to clause
(d) above, together with copies of such financing statements
(none of which (other than those described in clause (d), if
such Form UCC-11 or search report, as the case may be, is
current enough to list such financing statements described in
clause (d)) shall cover any collateral of such Person
described in the Subsidiary Security Agreement);
(g) such Person, if it is a Domestic Subsidiary, shall
have delivered to the Administrative Agent copies of each of
the Assigned Agreements of such Person referred to in the
Subsidiary Security Agreement, duly executed by each party
thereto other than the Borrower and such Person;
(h) such Person, if it is a Domestic Subsidiary, shall
become a party to the Cash Field Warehousing Agreement
pursuant to Section 14 thereof; and
(i) the Administrative Agent shall have received a
certificate of the Secretary or Assistant Secretary of such
Person as to (x) resolutions of its Board of Directors then in
full force and effect authorizing the execution, delivery and
performance of each Loan Document executed or to be executed
by it, (y) the incumbency and signatures of those of its
officers authorized to act with respect to each Loan Document
executed by it and (z) each of its Organic Documents, upon
which certificate each Lender may conclusively rely until it
shall have received a further certificate of the Secretary of
such Person canceling or amending such prior certificate;
together, in each case, with such opinions of legal counsel, in form
and substance reasonably satisfactory to the Administrative Agent, as
the Administrative Agent may reasonably require, relating to the Loan
Documents specified above.
SECTION 7.1.8. Use of Proceeds. The Borrower shall apply the
---------------
proceeds of the Credit Extensions for the Borrower's ongoing working
capital and general corporate purposes and not to finance acquisitions
(except that a Letter of Credit may be issued to support payment
obligations of the Borrower or its Subsidiaries to the seller in
connection with the acquisition described in clause (b) of the
definition of "Proposed Acquisitions").
---------------------
Without limiting the foregoing, no proceeds of any Loan will
be used (i) in any manner which would cause a Default hereunder or
(ii) to acquire or carry any equity security of a class which is
registered pursuant to Section 12 of the Securities Exchange Act of
1934 or any "margin stock", as defined in F.R.S. Board Regulation U.
SECTION 7.2. Negative Covenants. The Borrower agrees with
------------------
the Administrative Agent and each Lender that, until all Commitments
have terminated and all Obligations have been paid and performed in
full, the Borrower will perform the obligations set forth in this
Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will not,
-------------------
and will not permit any of its Subsidiaries to, engage in any business
activity, except the Check Cashing Business and such activities as may
be incidental or related thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will
------------
not permit Holdings or any of its Subsidiaries to, create, incur,
assume or suffer to exist or otherwise become or be liable in respect
of any Indebtedness, other than, without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and
other Obligations;
(b) the Senior Notes;
(c) Indebtedness which is identified in Item 7.2.2(c)
("Ongoing Indebtedness") of the Disclosure Schedule;
(d) Indebtedness in an aggregate principal amount not to
exceed $1,000,000 at any time outstanding which is incurred by
the Borrower or any of its Subsidiaries to a vendor of any
assets permitted to be acquired pursuant to Section 7.2.7
(excluding assets acquired with Excess Capital Expenditures)
to finance its acquisition of such assets;
(e) unsecured Indebtedness incurred in the ordinary
course of business (including open accounts extended by
suppliers on normal trade terms in connection with purchases
of goods and services, but excluding Indebtedness incurred
through the borrowing of money or Contingent Liabilities);
(f) unsecured Indebtedness of (i) Holdings owing to any
of its Subsidiaries, (ii) any Subsidiary to Holdings and (iii)
any Subsidiary of Holdings owing to any other Subsidiary of
Holdings, in each case so long as such Indebtedness, if owed
to a Domestic Subsidiary, shall be evidenced by one or more
promissory notes (in the form of Exhibit A to the Holdings
Guaranty and Pledge Agreement or the Borrower Pledge
Agreement, as the case may be) and pledged to the
Administrative Agent pursuant to the Holdings Guaranty and
Pledge Agreement or the Borrower Pledge Agreement, as the case
may be;
(g) Indebtedness in respect of any Hedging Agreement;
(h) the Western Union Commission Advance;
(i) an overdraft facility with CoreStates in connection
with the provision by CoreStates to the Borrower of bulk cash
services, in a principal amount not to exceed $2,500,000;
(j) a facility of National Money Mart Inc. with Bank of
Montreal for overdrafts and other potential exposures in
connection with the provision by Bank of Montreal to National
Money Mart Inc. of payroll, ACH and check cashing services, in
a principal amount not to exceed $3,500,000;
(k) Holdings and the Borrower may guaranty obligations
of their respective Subsidiaries arising under leases and
purchase agreements entered into in the ordinary course of
business or in connection with Permitted Acquisitions; and
(l) other unsecured Indebtedness of the Borrower and its
Subsidiaries not to exceed $2,500,000 in aggregate principal
amount at any time outstanding;
provided, however, that no Indebtedness otherwise permitted by clause
-------- -------
(d), (e), (f), (g), (h), (j), (k) or (l) shall be permitted if, after
giving effect to the incurrence thereof, any Default shall have
occurred and be continuing.
SECTION 7.2.3. Liens. The Borrower will not, and will not
-----
permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon any of its property, revenues or assets, whether
now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations granted
pursuant to any Loan Document;
(b) Liens disclosed in Item 7.2.3(b) of the Disclosure
Schedule;
(c) Liens granted to secure payment of Indebtedness of
the type permitted by and described in clause (d) of
Section 7.2.2 and covering only those assets acquired with the
proceeds of such Indebtedness;
(d) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter
payable without penalty or being diligently contested in good
faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have
been set aside on its books;
(e) Liens of carriers, warehousemen, mechanics,
materialmen and landlords incurred in the ordinary course of
business for sums not overdue or being diligently contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on
its books;
(f) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance
or other forms of governmental insurance or benefits, or to
secure performance of tenders, statutory obligations, leases
and contracts (other than for borrowed money) entered into in
the ordinary course of business or to secure obligations on
surety or appeal bonds;
(g) judgment Liens in existence less than 15 Business
Days after the entry thereof or with respect to which
execution has been stayed or the payment of which is covered
in full (subject to a customary deductible) by insurance
maintained with responsible insurance companies; and
(h) Liens on assets of Foreign Subsidiaries securing
Indebtedness not exceeding $3,500,000 in aggregate principal
amount outstanding at any time.
SECTION 7.2.4. Financial Condition.
-------------------
(a) Net Worth. The Borrower will cause Holdings not to
---------
permit its Net Worth as of the close of any Fiscal Quarter to
be less than the sum of (i) $33,000,000 plus (ii) 50% of Net
Income of Holdings and its Subsidiaries for the period
commencing on September 30, 1996 and ending on the last day of
such Fiscal Quarter (excluding any Fiscal Quarter during such
period in which a net loss occurred).
(b) Interest Coverage Ratio. The Borrower will cause
-----------------------
Holdings not to permit its Interest Coverage Ratio as of the
close of any Fiscal Quarter occurring during the applicable
period set forth below to be less than the ratio set forth
opposite such period:
Period Ratio
------ -----
Restatement Date through 6/30/97 1:50:1.00
7/01/97 through 6/30/98 1.75:1.00
7/01/98 and thereafter 2.00:1.00.
(c) Leverage Ratio. The Borrower will cause Holdings
--------------
not to permit its Leverage Ratio as of the close of any Fiscal
Quarter occurring during the applicable period set forth below
to be greater than the ratio set forth opposite such period:
Period Ratio
------ -----
Restatement Date through 6/30/97 5.25:1.00
7/01/97 through 6/30/98 4.50:1.00
7/01/98 and thereafter 4.00:1.00.
SECTION 7.2.5. Investments. The Borrower will not, and
-----------
will not permit any of its Subsidiaries to, make, incur, assume or
suffer to exist any Investment in any other Person, except:
(a) Investments identified in Item 7.2.5(a) ("Ongoing
Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Permitted Acquisitions, in compliance with Section
7.2.9(c); and
(d) in the ordinary course of business, Investments by
the Borrower in any of its Subsidiaries, or by any such
Subsidiary in any of its Subsidiaries, by way of contributions
to capital or loans or advances pursuant to clause (f) of
Section 7.2.2 (provided, however, that Investments in Foreign
-------- -------
Subsidiaries may not exceed $2,500,000 at any time
outstanding);
provided, however, that
-------- -------
(e) no Investment otherwise permitted by clause (d) shall
be permitted to be made if, immediately before or after giving
effect thereto, any Default shall have occurred and be
continuing; and
(f) the aggregate amount of all Investments made in any
year in Monetary Management Corp. (or any successor thereto)
and its Subsidiaries may not exceed $300,000.
SECTION 7.2.6. Restricted Payments, etc. At all times:
------------------------
(a) the Borrower will not declare, pay or make any
dividend or distribution (in cash, property or obligations) on
any shares of any class of capital stock (now or hereafter
outstanding) of the Borrower or on any warrants, options or
other rights with respect to any shares of any class of
capital stock (now or hereafter outstanding) of the Borrower
(other than dividends or distributions payable in its common
stock or warrants to purchase its common stock or splitups or
reclassifications of its stock into additional or other shares
of its common stock) or apply, or permit any of its
Subsidiaries to apply, any of its funds, property or assets to
the purchase, redemption, sinking fund or other retirement of,
or agree or permit any of its Subsidiaries to purchase or
redeem, any shares of any class of capital stock (now or
hereafter outstanding) of the Borrower, or warrants, options
or other rights with respect to any shares of any class of
capital stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not make any redemptions,
prepayments, defeasances or repurchases of the Senior Notes;
and
(c) the Borrower will not, and will not permit any
Subsidiary to, make any deposit for any of the foregoing
purposes;
provided, however, that notwithstanding any provision in the foregoing
-------- -------
to the contrary, upon approval of the board of directors of the
Borrower, the Borrower shall be permitted to repurchase the shares of
capital stock of the management of an Acquisition Prospect and
Holdings so long as the aggregate amount of all such repurchases shall
not exceed $500,000 from and after the date of the Original Credit
Agreement.
SECTION 7.2.7. Capital Expenditures, etc. The Borrower will
-------------------------
not, and will not permit any of its Subsidiaries to, make or commit to
make Capital Expenditures in any Fiscal Year in excess of (w)
$3,500,000 for the Fiscal Year ended June 30, 1997, (x) $5,000,000 for
the Fiscal Year ended June 30, 1998, (y) $3,250,000 for the Fiscal
Year ended June 30, 1999 and (z) $2,000,000 for each Fiscal Year
thereafter; provided, however, that, so long as no Default has
-------- -------
occurred and is continuing or would occur after giving effect thereto,
the Borrower and its Subsidiaries may use the proceeds of the Senior
Notes, the
proceeds of common equity infusions and the proceeds of the Western
Union Commission Advance to make additional Capital Expenditures
("Excess Capital Expenditures"), but in no event may the aggregate
---------------------------
amount of Excess Capital Expenditures exceed the lesser of (i) (x)
$7,000,000 less (y) the Western Union Commission Shortfall and (ii)
(x) $17,000,000 less (y) the Western Union Commission Shortfall less
(z) the amount of the aggregate purchase price paid in connection with
all Permitted Acquisitions (other than the Proposed Acquisitions
except as set forth in Section 7.2.9(c)(viii)) (calculated in
accordance with clause (c)(viii) of Section 7.2.9).
SECTION 7.2.8. Take or Pay Contracts. The Borrower will not,
---------------------
and will not permit any of its Subsidiaries to, enter into or be a
party to any arrangement for the purchase of materials, supplies,
other property or services if such arrangement by its express terms
requires that payment be made by the Borrower or such Subsidiary
regardless of whether such materials, supplies, other property or
services are delivered or furnished to it.
SECTION 7.2.9. Consolidation, Merger, etc. The Borrower will
--------------------------
not, and will not permit any of its Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other Person,
or purchase or otherwise acquire all or substantially all of the
assets of any Person (or of any division thereof) except
(a) so long as no Default has occurred and is continuing
or would occur after giving effect thereto, any such
Subsidiary may liquidate or dissolve voluntarily into, or
merge with and into, the Borrower or any other Subsidiary, and
the assets or stock of any Subsidiary may be purchased or
otherwise acquired by the Borrower or any other Subsidiary;
(b) so long as no Default has occurred and is continuing
or would occur after giving effect thereto, any Acquisition
Prospect may liquidate or dissolve voluntarily into, or merge
with and into, the Borrower or any Subsidiary, and the assets
or stock of any Acquisition Prospect may be purchased or
otherwise acquired by the Borrower or any Subsidiary; and
(c) Permitted Acquisitions, provided that
(i) the Borrower shall have delivered to the
Administrative Agent a duly-completed certificate in the
form of Exhibit Q (each, an "Acquisition
Certificate"), confirming that the financial conditions
referred to in clause (c)(iii) below with respect to such
acquisition will be satisfied, together with (x) a
statement of the chief financial Authorized Officer of
the Borrower detailing all amounts required to consummate
the prospective Permitted Acquisition and a business
description and summary of terms of the prospective
Permitted Acquisition, (y) evidence that the prospective
Permitted Acquisition is being made pursuant to a written
agreement approved by all necessary parties, including
the Borrower and the Acquisition Prospect, and (z) a
summary description of the business of the Acquisition
Prospect in substantially similar form to the reports
delivered in connection with acquisitions under the
Original Credit Agreement,
(ii) the Administrative Agent shall have received,
in each case in form and substance reasonably
satisfactory to the Administrative Agent, with copies for
each Lender,
(x) consolidated audited financial statements for
the related Acquisition Prospect for each of the last
three fiscal years of such Acquisition Prospect and
(y) pro forma consolidated balance sheets,
--- -----
statements of income and cash flows and projections
of the Borrower and its Subsidiaries, calculated as
of a date reasonably near to the related Acquisition
Date for the five-year period immediately succeeding
the prospective Permitted Acquisition giving effect
to the consummation of such Permitted Acquisition and
all transactions contemplated in connection
therewith,
(iii) the Borrower shall be in compliance with all
financial covenants in Section 7.2.4 (x) for the period
of four consecutive Fiscal Quarters ending on the last
day of the last day of the last completed Fiscal Quarter
immediately preceding the date of the prospective
Permitted Acquisition (or, with respect to any Proposed
Acquisition, June 30, 1996) and (y) as projected by the
Borrower for the period of four consecutive Fiscal
Quarters beginning on the first day of the Fiscal Quarter
in which the date of the
prospective Permitted Acquisition occurs (or, with
respect to any Proposed Acquisition, June 30, 1996),
which calculations, in each of clauses (x) and (y), shall
include the Adjusted EBITDA of the related Acquisition
Prospect for such entire four Fiscal Quarter Period,
(iv) the acquisition of the related Acquisition
Prospect shall be consummated in accordance with all
requirements of applicable law and the Borrower and its
Subsidiaries shall have obtained all consents and
approvals necessary or desirable to such consummation and
the business operations of such Acquisition Prospect
after such acquisition, including governmental and
contractual approvals and consents of landlords, except
those consents the failure to obtain which, in the
reasonable business judgment of the Borrower, will not
result in a material adverse effect in the business,
operations, assets, revenues, properties or prospects of
the Borrower and its Subsidiaries,
(v) no Default shall exist at the time of
consummation thereof or would result therefrom,
(vi) the Person to be acquired (or its Board of
Directors or equivalent governing body) has not (i)
announced it will oppose such acquisition or (ii)
commenced any action which alleges that such acquisition
violates, or will violate, any applicable law,
(vii) such acquisition is not funded with the
proceeds of any Loans,
(viii) the total consideration for all such
acquisitions (other than the Proposed Acquisitions except
as set forth below) (including cash and noncash purchase
price, liabilities assumed, deferred or financed purchase
price, purchase price characterized as noncompetition
payments and the like), plus the amount of all Excess
Capital Expenditures, does not exceed in the aggregate
(i) during the term of this Agreement (x) $17,000,000
less (y) the Western Union Commission Shortfall and (ii)
during any period of four consecutive Fiscal Quarters,
(x) $15,000,000 less (y) the Western Union Commission
Shortfall (it
being understood that any increase in purchase price for
any Proposed Acquisition to an amount in excess of the
amount set forth with respect to such Proposed
Acquisition in the Borrower's Confidential Offering
Memorandum dated November 12, 1996 with respect to the
Senior Notes shall be counted against the purchase price
limitations above and in Section 7.2.7), and
(ix) such acquisition is consummated on or prior to
June 30, 1999.
SECTION 7.2.10. Asset Dispositions, etc. The Borrower will
-----------------------
not, and will not permit any of its Subsidiaries to, sell, transfer,
lease, contribute or otherwise convey, or grant options, warrants or
other rights with respect to, all or any substantial part of its
assets (including accounts receivable and capital stock of
Subsidiaries) to any Person, unless
(a) such sale, transfer, lease, contribution or
conveyance is in the ordinary course of its business or is
permitted by Section 7.2.9; or
(b) such sale, transfer, lease, contribution or
conveyance is made for fair market value, as determined in
good faith by the board of directors of the Borrower or
Subsidiary disposing of such assets and the net book value of
such assets, together with the net book value of all other
assets sold, transferred, leased, contributed or conveyed
otherwise than in the ordinary course of business by the
Borrower or any of its Subsidiaries pursuant to this clause
since the Restatement Date does not exceed $3,000,000.
SECTION 7.2.11. Modification of Certain Agreements. The
----------------------------------
Borrower will not consent to any amendment, supplement or other
modification of any of the terms or provisions contained in, or
applicable to, (a) the Merger Agreement (including all exhibits
thereto), or (b) unless any such amendment is not adverse in any
respect to the Lenders or is not reasonably likely to have a material
adverse effect on the business, operations, assets, revenues,
properties or prospects of the Borrower and its Subsidiaries, the
Senior Notes, the Senior Notes Indenture or the Registration Rights
Agreement, unless, in each case, the same shall be consented to by the
Required Lenders.
SECTION 7.2.12. Transactions with Affiliates. The Borrower
----------------------------
will not, and will not permit any of its Subsidiaries
to, enter into, or cause, suffer or permit to exist any arrangement or
contract with any of its other Affiliates unless such arrangement or
contract is fair and equitable to the Borrower or such Subsidiary and
is an arrangement or contract of the kind which would be entered into
by a prudent Person in the position of the Borrower or such Subsidiary
with a Person which is not one of its Affiliates.
SECTION 7.2.13. Negative Pledges, Restrictive Agreements,
-----------------------------------------
etc. The Borrower will not, and will not permit any of its
---
Subsidiaries to, enter into any agreement (excluding this Agreement,
any other Loan Document and any agreement governing any Indebtedness
permitted by clause (d) of Section 7.2.2 as to the assets financed
with the proceeds of such Indebtedness) prohibiting
(a) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired, or the ability of the Borrower or any other Obligor
to amend or otherwise modify this Agreement or any other Loan
Document; or
(b) the ability of any Subsidiary to make any payments,
directly or indirectly, to the Borrower by way of dividends,
advances, repayments of loans or advances, reimbursements of
management and other intercompany charges, expenses and
accruals or other returns on investments, or any other
agreement or arrangement which restricts the ability of any
such Subsidiary to make any payment, directly or indirectly,
to the Borrower.
SECTION 7.2.14. Limitation on Issuance of Guaranty
----------------------------------
Obligations. The Borrower will not permit any Subsidiary to create,
-----------
incur, assume, suffer to exist, or otherwise become or remain directly
or indirectly liable with respect to any Contingent Liability of such
Subsidiary relating to any Indebtedness of the Borrower unless
(a) such Subsidiary, if it is not already a party to the
Subsidiary Guaranty, simultaneously executes and delivers to
the Administrative Agent a counterpart to the Subsidiary
Guaranty, together with such supporting documentation as the
Administrative Agent may reasonably request, notwithstanding
Section 7.1.7,
(b) if such Indebtedness is by its terms subordinated to
the Obligations of the Borrower, any such assumption, guaranty
or other liability of such
Subsidiary with respect to such Indebtedness shall be
subordinated, in form and substance satisfactory to the
Administrative Agent, to such Subsidiary's Obligations under
the Subsidiary Guaranty to the same extent as such
Indebtedness is subordinated to the Obligations of the
Borrower (provided that such Subsidiary's Contingent Liability
--------
with respect to such Indebtedness of the Borrower shall be
subordinated to the full amount of such Subsidiary's
Obligations under the Subsidiary Guaranty without giving
effect to any reduction thereto necessary to render the
Obligations of such Subsidiary thereunder not voidable under
applicable law relating to fraudulent conveyance or fraudulent
transfer), and
(c) such Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any
right of reimbursement, indemnity or subrogation or any other
rights against the Borrower or any other Subsidiary as a
result of any payment by such Subsidiary under its Contingent
Liability with respect to such other Indebtedness of the
Borrower.
ARTICLE VIII.
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the
----------------------------
following events or occurrences described in this Section 8.1 shall
constitute an "Event of Default".
----------------
SECTION 8.1.1. Non-Payment of Obligations. The Borrower
--------------------------
shall default in the payment or prepayment when due of any principal
of or interest on any Loan, the Borrower shall default in the payment
when due of any Reimbursement Obligation under any Letter of Credit
(unless such Reimbursement Obligation is converted to Loans pursuant
to Section 2.8.2), or the Borrower shall default (and such default
shall continue unremedied for a period of five days) in the payment
when due of any fee or of any other Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or
------------------
warranty of the Borrower or any other Obligor made or deemed to be
made hereunder or in any other Loan Document executed by it or any
other writing or certificate furnished by or on behalf of the Borrower
or any other Obligor to the Administrative Agent or any Lender for the
purposes of or in connection with this Agreement or any such other
Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect
when made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and
----------------------------------------
Obligations. The Borrower shall default in the due performance and
-----------
observance of any of its obligations under clauses (b) or (f) or (g)
of Section 7.1.1 and Section 7.2 or under the Post-Closing Matters
Letter Agreement or Holdings shall default in the due performance and
observance of any of its obligations under Section 4.11 of the
Holdings Guaranty and Pledge Agreement.
SECTION 8.1.4. Non-Performance of Other Covenants and
--------------------------------------
Obligations. Any Obligor shall default in the due performance and
-----------
observance of any other agreement contained herein or in any other
Loan Document executed by it, and such default shall continue
unremedied for a period of 30 days after notice thereof shall have
been given to the Borrower by the Administrative Agent or any Lender.
SECTION 8.1.5. Default on Other Indebtedness. A default
-----------------------------
shall occur in the payment when due (subject to any applicable grace
period), whether by acceleration or otherwise, of any Indebtedness
(other than Indebtedness described in Section 8.1.1) of the Borrower
or any of its Subsidiaries or any other Obligor having a principal
amount, individually or in the aggregate, in excess of $1,000,000, or
a default shall occur in the performance or observance of any
obligation or condition with respect to such Indebtedness if the
effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any
applicable period of time sufficient to permit the holder or holders
of such Indebtedness, or any trustee or agent for such holders, to
cause such Indebtedness to become due and payable prior to its
expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the
---------
payment of money not fully covered by insurance (evidence of which
shall have been provided to the Administrative Agent) which, together
with other such outstanding judgments or orders against the Borrower
or any of its Subsidiaries or any other Obligor, exceeds $250,000 in
the aggregate shall be rendered against the Borrower or any of its
Subsidiaries or any other Obligor and either
(a) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order; or
(b) there shall be any period of 10 consecutive days
during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall
not be in effect.
SECTION 8.1.7. Pension Plans. Any of the following events
-------------
shall occur with respect to any Pension Plan
(a) the institution of any steps by the Borrower, any
member of its Controlled Group or any other Person to
terminate a Pension Plan if, as a result of such termination,
the Borrower could reasonably be expected to be required to
make a contribution to such Pension Plan, or could reasonably
expect to incur a liability or obligation to such Pension
Plan, in excess of $250,000; or
(b) a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA.
SECTION 8.1.8. Control of the Borrower. Any Change in
-----------------------
Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or
---------------------------
any of its Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit
in writing its inability or unwillingness to pay, debts as
they become due;
(b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or other
custodian for the Borrower or any of its Subsidiaries or any
other Obligor or any property of any thereof, or make a
general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for the
Borrower or any of its Subsidiaries or any other Obligor or
for a substantial part of the property of any thereof, and
such trustee, receiver, sequestrator or other custodian shall
not be discharged within 60 days, provided that the Borrower,
--------
each Subsidiary and each other Obligor hereby expressly
authorizes the Administrative Agent and each Lender to appear
in any court conducting any relevant proceeding during such
60-day period to preserve, protect and defend their rights
under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect
of the Borrower or any of its Subsidiaries or any other
Obligor, and, if any such case or proceeding is not commenced
by the Borrower or such Subsidiary or such other Obligor, such
case or proceeding shall be consented to or acquiesced in by
the Borrower or such Subsidiary or such other Obligor or shall
result in the entry of an order for relief or shall remain for
60 days undismissed, provided that the Borrower, each
--------
Subsidiary and each other Obligor hereby expressly authorizes
the Administrative Agent and each Lender to appear in any
court conducting any such case or proceeding during such 60-
day period to preserve, protect and defend their rights under
the Loan Documents; or
(e) take any corporate action authorizing, or in
furtherance of, any of the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan
---------------------------
Document, or any Lien granted thereunder, shall (except in accordance
with its terms), in whole or in part, terminate, cease to be effective
or cease to be the legally valid, binding and enforceable obligation
of any Obligor party thereto; the Borrower, any other Obligor or any
other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or any Lien
securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions
expressly permitted by such Loan Document.
SECTION 8.1.11. Rubin Litigation. The Borrower shall enter
----------------
into any agreement to compromise or settle any claims made by Adrian
Rubin and his Affiliates (including Happy's Check Cashing and Chase
Money Loan Inc.) in connection with that certain Asset Purchase
Agreement dated January 9, 1995 or any judgment or order for the
payment of money with respect thereto shall be entered against the
Borrower if such agreement to compromise or settle, judgment or order
shall be in an amount in excess of $500,000.
SECTION 8.1.12. Registration Rights Agreement. The Borrower
-----------------------------
and its Subsidiaries shall have paid an amount in excess of $350,000
in liquidated damages under Section 5 of the Registration Rights
Agreement.
SECTION 8.2. Action if Bankruptcy. If any Event of Default
--------------------
described in clauses (a) through (d) of Section 8.1.9 shall occur with
respect to the Borrower or any Subsidiary or any other Obligor, the
Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding
Loans and all other Obligations shall automatically be and become
immediately due and payable, without notice or demand.
SECTION 8.3. Action if Other Event of Default. If any Event
--------------------------------
of Default (other than any Event of Default described in clauses (a)
through (d) of Section 8.1.9 with respect to the Borrower or any
Subsidiary or any other Obligor) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent,
upon the direction of the Required Lenders, shall by notice to the
Borrower declare all or any portion of the outstanding principal
amount of the Loans and other Obligations to be due and payable and/or
the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations
which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or
presentment, and/or, as the case may be, the Commitments shall
terminate.
ARTICLE IX.
THE AGENTS
SECTION 9.1. Appointment and Authorization. (a) Each Lender
-----------------------------
hereby irrevocably (subject to Section 9.9) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document
and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto. Each Lender hereby appoints Lehman Commercial Paper, Inc. as
Documentation Agent for the Lenders. The Documentation Agent shall
have no rights or duties in such capacity. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in
any other Loan Document, the Administrative Agent shall not have any
duties or responsibilities except those expressly set forth herein,
nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting
the generality of the foregoing sentence, the use of the term "agent"
in this Agreement and in the other Loan Documents with reference to
the Administrative Agent is not intended to connote any fiduciary or
other implied (or express) obligation arising under agency doctrine of
any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) The Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders
to act for the Issuer with respect thereto; provided, however, that
-------- -------
the Issuer shall have all of the benefits and immunities (i) provided
to the Administrative Agent in this Article IX with respect to any
acts taken or omissions suffered by the Issuer in connection with
Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent", as
used in this Article IX, included the Issuer with respect to such acts
or omissions and (ii) as additionally provided in this Agreement with
respect to the Issuer.
SECTION 9.2. Delegation of Duties. The Administrative Agent
--------------------
may execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
SECTION 9.3. Liability of Administrative Agent. None of the
---------------------------------
Agent-Related Persons shall (i) be liable for any action taken or
omitted to be taken by any of them under or in connection with this
Agreement or any other Loan Document or the transactions contemplated
hereby (except for its own gross negligence or willful misconduct), or
(ii) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by the Borrower or
any Subsidiary or Affiliate of the Borrower, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any
failure of the Borrower or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the
Borrower or any of the Borrower's Subsidiaries or Affiliates.
SECTION 9.4. Reliance by Administrative Agent. (a) The
--------------------------------
Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive
such advice or concurrence of the Required Lenders and, if it so
requests, confirmation from the Lenders of their obligation to
indemnify the Administrative Agent against any and all liability and
expense which may be incurred by it by reason of taking or continuing
to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders and such request and any action taken
or failure to act pursuant thereto shall be binding upon all of the
Lenders.
(b) For purposes of determining compliance with the
conditions specified in Article V or in any comparable provision of
any amendment hereto, each Lender that has executed this Agreement or
such amendment shall be deemed to have consented to, approved or
accepted, or to be satisfied with, each document or other matter
either sent by the Administrative Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such
Lender.
SECTION 9.5. Notice of Default. The Administrative Agent
-----------------
shall not be deemed to have knowledge or notice of the occurrence of
any Event of Default or Default, except with
respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written
notice from a Lender or the Borrower referring to this Agreement,
describing such Event of Default or Default and stating that such
notice is a "notice of default". The Administrative Agent will notify
the Lenders of its receipt of any such notice. The Administrative
Agent shall take such action with respect to such Event of Default or
Default as may be requested by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the
-------- -------
Administrative Agent has received any such request, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Event of Default or
Default as it shall deem advisable or in the best interest of the
Lenders.
SECTION 9.6. Credit Decision. Each Lender acknowledges that
---------------
none of the Agent-Related Persons has made any representation or
warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the Borrower
and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lender. Each Lender
represents to the Administrative Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all
applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrower hereunder. Each Lender
also represents that it will, independently and without reliance upon
any Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly herein required to be furnished
to the Lenders by the Administrative Agent, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, prospects,
operations, property, financial and other condition or
creditworthiness of the Borrower or its Subsidiaries which may come
into the possession of any of the Agent-Related Persons.
SECTION 9.7. Indemnification. The Lenders shall indemnify
---------------
upon demand the Agent-Related Persons (to the extent not reimbursed by
or on behalf of the Borrower and without limiting the obligation of
the Borrower to do so), pro rata, from and against any and all
--- ----
Indemnified Liabilities; provided, however, that no Lender shall be
-------- -------
liable for the payment to the Agent-Related Persons of any portion of
such Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon
demand for its ratable share of any costs or out-of-pocket expenses
(including reasonable fees of attorneys for the Administrative Agent
and, without duplication, the allocable costs of internal legal
services and all disbursements of internal counsel) incurred by the
Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section 9.7 shall survive the expiration or
termination of the Commitments and payment of the Loans and other
liabilities of the Borrower hereunder and the resignation or
replacement of the Administrative Agent.
For the purposes of this Section 9.7, "Indemnified
-----------
Liabilities" shall mean: "any and all liabilities, obligations,
-----------
losses, damages, penalties, actions, judgments, suits, costs, charges,
expenses and disbursements (including reasonable fees of attorneys for
the Administrative Agent and, without duplication, the allocable costs
of internal legal services and all disbursements of internal counsel)
of any kind or nature whatsoever which may at any time (including at
any time following expiration or termination of the Commitments,
repayment of the Loans and the termination, resignation or replacement
of the Administrative Agent or replacement of any Lender) be imposed
on, incurred by or asserted against any such Person in any way
relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions
contemplated hereby, or any action taken or omitted by any such Person
under or in connection with any of the foregoing, including with
respect to any investigation, litigation or proceeding (including (a)
any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for
creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; undertaken
under U.S. Federal, state or foreign law, including the Bankruptcy
Code or appellate proceeding) related to or arising out of this
Agreement or the Loans or the use of the proceeds thereof, whether or
not any Agent-Related Person, any Lender or any of their respective
officers, directors, employees, counsel, agents or attorneys-in-fact
is a party thereto."
SECTION 9.8. Administrative Agent in Individual Capacity.
-------------------------------------------
BofA and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from and generally engage in any kind
of banking, trust, financial advisory, underwriting or other business
with the Borrower and its Subsidiaries and Affiliates as though BofA
were not the Administrative Agent hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to
such activities, BofA or its Affiliates may receive information
regarding the Borrower or its Affiliates (including information that
may be subject to confidentiality obligations in favor of the Borrower
or such Subsidiary) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them.
With respect to their Loans, BofA and its Affiliates shall have the
same rights and powers under this Agreement as any other Lender and
may exercise the same as though BofA were not the Administrative
Agent, and the terms "Lender" and "Lenders" include BofA and its
Affiliates, to the extent applicable, in their individual capacities.
SECTION 9.9. Successor Administrative Agent. The
------------------------------
Administrative Agent may resign as Administrative Agent upon 30 days'
notice to the Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders. If no successor
administrative agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrower, a
successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent
hereunder, such successor administrative agent shall succeed to all
the rights, powers and duties of the retiring Administrative Agent and
the term "Administrative Agent" shall mean such successor
administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article IX
and Section 10.2 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor administrative agent has accepted
appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any,
as the Required Lenders appoint a successor administrative agent as
provided for above.
SECTION 9.10. Withholding Tax.
---------------
(a) If any Lender is a "foreign corporation, partnership
or trust" within the meaning of the Code and such Lender
claims exemption from, or a reduction of, U.S. withholding tax
under Sections 1441 or 1442 of the Code, such Lender agrees
with and in favor of the Administrative Agent to deliver to
the Administrative Agent:
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, properly completed IRS Forms 1001 and W-8 before
the payment of any interest in the first calendar year
and before the payment of any interest in each third
succeeding calendar year during which interest may be
paid under this Agreement;
(ii) if such Lender claims that interest paid under
this Agreement is exempt from United States withholding
tax because it is effectively connected with a United
States trade or business of such Lender, two properly
completed and executed copies of IRS Form 4224 before the
payment of any interest is due in the first taxable year
of such Lender and in each succeeding taxable year of
such Lender during which interest may be paid under this
Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be
required under the Code or other laws of the
United States as a condition to exemption
from, or reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Administrative Agent
of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.
(b) If any Lender claims exemption from, or
reduction of, withholding tax under a United States tax
treaty by providing IRS Form 1001 and such Lender
sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the
Borrower to such Lender, such Lender agrees to notify
the Administrative Agent of the percentage amount in
which it is no longer the beneficial owner of
Obligations of the Borrower to such Lender. To the
extent of such percentage amount, the Administrative
Agent will treat such Lender's IRS Form 1001 as no
longer valid.
(c) If any Lender claiming exemption from United
States withholding tax by filing IRS Form 4224 with the
Administrative Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of
the Notes of the Borrower to such Lender, such Lender
agrees to undertake sole responsibility for complying
with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in
the applicable withholding tax, the Administrative
Agent may withhold from any interest payment to such
Lender an amount equivalent to the applicable
withholding tax after taking into account such
reduction. If the forms or other documentation
required by clause (a) of this Section 9.10 are not
delivered to the Administrative Agent, then the
Administrative Agent may withhold from any interest
payment to such Lender not providing such forms or
other documentation an amount equivalent to the
applicable withholding tax.
(e) If the Internal Revenue Service or any
other Governmental Authority of the United States or
other jurisdiction asserts a claim that
the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed,
or because such Lender failed to notify the Administrative
Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective,
or for any other reason), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section 9.10, together with
all costs and expenses (including reasonable fees of attorneys
for the Administrative Agent and, without duplication, the
allocable costs of internal legal services and all
disbursements of internal counsel). The obligation of the
Lenders under this subsection shall survive the expiration or
termination of the Commitments and payment of the Loans and
other liabilities of the Borrower hereunder and the
resignation or replacement of the Administrative Agent.
SECTION 9.11. Collateral Matters. (a) The Administrative
------------------
Agent is authorized on behalf of all the Lenders, without the
necessity of any notice to or further consent from the Lenders, from
time to time to take any action with respect to any collateral or the
Loan Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the collateral
granted pursuant to the Loan Documents.
(b) The Lenders irrevocably authorize the Administrative
Agent, at its option and in its discretion, to release any Lien
granted to or held by the Administrative Agent upon any collateral:
(i) upon termination of the Commitments and payment in full of all
Loans and all other obligations known to the Administrative Agent and
payable under this Agreement or any other Loan Document; (ii)
constituting property sold or to be sold or disposed of as part of or
in connection with any disposition permitted hereunder; (iii)
constituting property in which the Borrower or any Subsidiary owned no
interest at the time the Lien was granted or at any time thereafter;
(iv) constituting property leased to the Borrower or any Subsidiary
under a lease which has expired or been terminated in a transaction
permitted under this Agreement or is about to expire
and which has not been, and is not intended by the Borrower or such
Subsidiary to be, renewed or extended; (v) consisting of an instrument
evidencing Indebtedness or other debt instrument, if the indebtedness
thereby has been paid in full; or (vi) if approved, authorized or
ratified in writing by the Required Lenders or, if required by Section
10.1(c), all the Lenders. Upon request by the Administrative Agent at
any time, the Lenders will confirm in writing the Administrative
Agent's authority to release particular types or items of collateral
pursuant to this Section 9.11(b).
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of
------------------------
this Agreement and of each other Loan Document may from time to time
be amended, modified or waived, if such amendment, modification or
waiver is in writing and consented to by the Borrower and the Required
Lenders; provided, however, that no such amendment, modification or
-------- -------
waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders
shall be effective unless consented to by each Lender;
(b) modify this Section 10.1 or change the definition of
"Required Lenders" shall be effective unless consented to by
----------------
each Lender and the Borrower;
(c) reduce any fees described in Article III (other than
the fee described in Section 3.3.1(a)), release all or
substantially all collateral security or release Holdings from
the Holdings Guaranty and Pledge Agreement or any Subsidiary
from the Subsidiary Guaranty, except as otherwise specifically
provided in any Loan Document, shall be made without the
consent of each Lender and each holder of a Note;
(d) extend the Commitment Termination Date shall be made
without the consent of each Lender;
(e) extend the due date for, or reduce the amount of,
any mandatory reduction of any Commitment, any scheduled or
mandatory repayment or prepayment of principal of or interest
on any Loan or any payment or cash collateralization with
respect to any Letter of
Credit, or reduce the principal amount of or rate of interest
on any Loan, shall be made without the consent of the holder
of the Note evidencing such Loan;
(f) increase any Commitment of any Lender without the
consent of such Lender;
(g) affect the rights of the Issuer or reduce the fee
described in Section 3.3.1(a) unless consented to by the
Issuer; or
(h) affect adversely the interests, rights or
obligations of the Administrative Agent qua the Administrative
---
Agent shall be made without consent of the Administrative
Agent.
No failure or delay on the part of the Administrative Agent, any
Lender or the holder of any Note in exercising any power or right
under this Agreement or any other Loan Document 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 notice to or demand on the
Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by the
Administrative Agent, any Lender or the holder of any Note under this
Agreement or any other Loan Document shall, except as may be otherwise
stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 10.2. Notices. All notices and other communications
-------
provided to any party hereto under this Agreement or any other Loan
Document shall be in writing or by facsimile and addressed, delivered
or transmitted to such party at its address or facsimile number set
forth below its signature hereto or set forth in the Lender Assignment
Agreement or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when transmitted.
SECTION 10.3. Payment of Costs and Expenses. The Borrower
-----------------------------
agrees to pay on demand all expenses of the Administrative Agent, BAI
in its capacity as Issuer and BA Securities, Inc. in its capacity as
arranger (including the
reasonable fees and out-of-pocket expenses of counsel, of local
counsel, if any, who may be retained by counsel to such Persons and,
without duplication, the allocable costs of internal legal services
and all disbursements of internal counsel) in connection with
(a) the negotiation, preparation, execution and delivery
of this Agreement and of each other Loan Document, including
schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or any
other Loan Document as may from time to time hereafter be
required, whether or not the transactions contemplated hereby
are consummated,
(b) the filing, recording, refiling or rerecording of
the Pledge Agreements and the Security Agreements and/or any
Uniform Commercial Code financing statements relating thereto
and all amendments, supplements and modifications to any
thereof and any and all other documents or instruments of
further assurance required to be filed or recorded or refiled
or rerecorded by the terms hereof or of the Pledge Agreements
or the Security Agreements, and
(c) the preparation and review of the form of any
document or instrument relevant to this Agreement or any other
Loan Document.
The Borrower further agrees to pay, and to save the Administrative
Agent and the Lenders harmless from all liability for, any stamp or
other taxes which may be payable in connection with the execution or
delivery of this Agreement, the borrowings hereunder, the issuance of
the Notes, the issuance of the Letters of Credit or any other Loan
Document. The Borrower also agrees to reimburse the Administrative
Agent and each Lender upon demand for all reasonable out-of-pocket
expenses (including attorneys' fees and legal expenses) incurred by
the Administrative Agent or such Lender in connection with (x) the
negotiation of any restructuring or "work-out", whether or not
consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION 10.4. Indemnification. In consideration of the
---------------
execution and delivery of this Agreement by each Lender and the
extension of the Commitments, the Borrower hereby indemnifies,
exonerates and holds the Administrative Agent, the Issuer and each
Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties")
-------------------
free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and
disbursements (including, without duplication, the allocable costs of
internal legal services and all disbursements of internal counsel)
(collectively, the "Indemnified Liabilities"), incurred by the
-----------------------
Indemnified Parties or any of them as a result of, or arising out of,
or relating to
(a) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of any
Loan;
(b) the entering into and performance of this Agreement
and any other Loan Document by any of the Indemnified Parties
(including any action brought by or on behalf of the Borrower
as the result of any determination by the Required Lenders
pursuant to Article V not to make any Credit Extension);
(c) any investigation, litigation or proceeding related
to any acquisition or proposed acquisition by the Borrower or
any of its Subsidiaries of all or any portion of the stock or
assets of any Person, whether or not the Administrative Agent
or such Lender is party thereto;
(d) any investigation, litigation or proceeding related
to any environmental cleanup, audit, compliance or other
matter relating to the protection of the environment or the
Release by the Borrower or any of its Subsidiaries of any
Hazardous Material;
(e) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or
releases from, any real property owned or operated by the
Borrower or any Subsidiary thereof of any Hazardous Material
(including any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the control
of, the Borrower or such Subsidiary; or
(f) any investigation, litigation or proceeding related
to any violation or alleged violation by the Borrower or any
Subsidiary or Holdings of any Consumer Credit Law,
except for any such Indemnified Liabilities arising for the account of
a particular Indemnified Party by reason of the relevant Indemnified
Party's gross negligence or wilful misconduct. If and to the extent
that the foregoing undertaking may be unenforceable for any reason,
the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which
is permissible under applicable law.
SECTION 10.5. Survival. The obligations of the Borrower
--------
under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations
of the Lenders under Section 9.1, shall in each case survive any
termination of this Agreement, the payment in full of all Obligations
and the termination of all Commitments. The representations and
warranties made by each Obligor in this Agreement and in each other
Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement
------------
or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this Agreement or
such Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this
--------
Agreement and of each other Loan Document are inserted for convenience
only and shall not affect the meaning or interpretation of this
Agreement or such other Loan Document or any provisions hereof or
thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc.
---------------------------------------------
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and all
of which shall constitute together but one and the same agreement.
This Agreement shall become effective when counterparts hereof
executed on behalf of the Borrower and each Lender (or notice thereof
satisfactory to the Administrative Agent) shall have been received by
the Administrative Agent and notice thereof shall have been given by
the Administrative Agent to the Borrower and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS
-------------------------------
AGREEMENT, THE NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK. This Agreement, the Notes and the
other Loan Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and supersede
any prior agreements, written or oral, with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall
----------------------
be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however, that:
-------- -------
(a) the Borrower may not assign or transfer its rights
or obligations hereunder without the prior written consent of
the Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the
Lenders are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes;
-------------------------------------
Participations in Loans and Notes. Each Lender may assign, or sell
---------------------------------
participations in, its Loans and Commitments to one or more other
Persons in accordance with this Section 10.11.
SECTION 10.11.1. Assignments. Any Lender,
-----------
(a) with notice to (but without the consent of) the
Borrower and with the written consent of the Administrative
Agent and the Issuer (which consents shall not be unreasonably
delayed or withheld) may at any time assign and delegate to
one or more commercial banks or other financial institutions
(provided, that no such consent of the Administrative Agent or
--------
the Issuer shall be required if (x) prior to such assignment,
the assigning Lender had a greater Percentage than BAI and (y)
such assignment is to an Eligible Assignee), and
(b) with notice to the Borrower and the Administrative
Agent, but without the consent of the Borrower or the
Administrative Agent, may assign and delegate to any of its
Affiliates or to any other Lender
(each Person described in either of the foregoing clauses as being the
Person to whom such assignment and delegation is to be made, being
hereinafter referred to as an "Assignee Lender"), all or any fraction
---------------
of such Lender's total Loans and Commitments in a minimum aggregate
amount of $5,000,000; provided, however, that any such Assignee Lender
-------- -------
will comply, if applicable, with the provisions contained in the last
sentence of Section 4.6 and
further provided, however, that (x) no assignment and delegation shall
------- -------- -------
be made (i) to a Person engaged in the Check Cashing Business without
the prior consent of the Borrower (which consent shall not be
unreasonably withheld) it being understood that a Person engaged in
the business of making consumer loans is not, solely by virtue of such
business, engaged in the Check Cashing Business or (ii) if, as a
result of such assignment and delegation, the Borrower would be
obligated to pay any greater amount under Section 4.6 to the Assignee
Lender than the Borrower is then obligated to pay to the assigning
Lender under such Section, (y) no Lender may make any assignment or
delegation of its Loans and Commitment that does not assign an equal
pro rata interest in each and (z) each assignment and delegation must
--- ----
be of a constant, and not a varying, percentage of all Loans and
Commitments to be assigned and delegated and further, provided,
------- --------
however, that the Borrower, each other Obligor, the Administrative
-------
Agent and the Issuer shall be entitled to continue to deal solely and
directly with such Lender in connection with the interests so assigned
and delegated to an Assignee Lender until
(c) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Lender, shall have
been given to the Borrower and the Administrative Agent by
such Lender and such Assignee Lender,
(d) such Assignee Lender shall have executed and
delivered to the Borrower and the Administrative Agent a
Lender Assignment Agreement, accepted by the Administrative
Agent and the Issuer, and
(e) the processing fee described below shall have been
paid.
From and after the date that the Administrative Agent accepts such
Lender Assignment Agreement, (x) the Assignee Lender thereunder shall
be deemed automatically to have become a party hereto and to the
extent that rights and obligations hereunder have been assigned and
delegated to such Assignee Lender in connection with such Lender
Assignment Agreement, shall have the rights and obligations of a
Lender hereunder and under the other Loan Documents, and (y) the
assignor Lender, to the extent that rights and obligations hereunder
have been assigned and delegated by it in connection with such Lender
Assignment Agreement, shall be released from its obligations hereunder
and under the other Loan Documents. Within five Business Days after
its receipt of
notice that the Administrative Agent has received an executed Lender
Assignment Agreement, the Borrower shall execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender)
new Notes evidencing such Assignee Lender's assigned Loans and
Commitments and, if the assignor Lender has retained Loans and
Commitments hereunder, replacement Notes in the principal amount of
the Loans and Commitments retained by the assignor Lender hereunder
(such Notes to be in exchange for, but not in payment of, those Notes
then held by such assignor Lender). Each such Note shall be dated the
date of the predecessor Notes. The assignor Lender shall mark the
predecessor Notes "exchanged" and deliver them to the Borrower.
Accrued interest on that part of the predecessor Notes evidenced by
the new Notes, and accrued fees, shall be paid as provided in the
Lender Assignment Agreement. Accrued interest on that part of the
predecessor Notes evidenced by the replacement Notes shall be paid to
the assignor Lender. Accrued interest and accrued fees shall be paid
at the same time or times provided in the predecessor Notes and in
this Agreement. Such assignor Lender or such Assignee Lender must
also pay a processing fee to the Administrative Agent upon delivery of
any Lender Assignment Agreement in the amount of $3,000. Any
attempted assignment and delegation not made in accordance with this
Section 10.11.1 shall be null and void.
SECTION 10.11.2. Participations. Any Lender may at any time
--------------
sell to one or more commercial banks or other Persons (each of such
commercial banks and other Persons being herein called a
"Participant") participating interests in any of the Loans,
-----------
Commitments, or other interests of such Lender hereunder; provided,
--------
however, that
-------
(a) no participation contemplated in this
Section 10.11.2 shall relieve such Lender from its Commitments
or its other obligations hereunder or under any other Loan
Document,
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations,
(c) the Borrower and each other Obligor, the Issuer and
the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and each of the
other Loan Documents,
(d) no Participant, unless such Participant is an
Affiliate of such Lender, or is itself a Lender, shall be
entitled to require such Lender to take or refrain from taking
any action hereunder or under any other Loan Document, except
that such Lender may agree with any Participant that such
Lender will not, without such Participant's consent, take any
actions of the type described in clause (c), (d) or (e) of
Section 10.1,
(e) the Borrower shall not be required to pay any amount
under Section 4.6 that is greater than the amount which it
would have been required to pay had no participating interest
been sold, and
(f) in the event that a Participant is engaged in the
Check Cashing Business, the Borrower shall consent in writing
to such participation (which consent shall not be unreasonably
withheld), it being understood that a Person engaged in the
business of making consumer loans is not, solely by virtue of
such business, engaged in the Check Cashing Business.
The Borrower acknowledges and agrees that each Participant, for
purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4,
shall be considered a Lender.
SECTION 10.12. Other Transactions. Nothing contained herein
------------------
shall preclude the Administrative Agent or any other Lender from
engaging in any transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Affiliates in which the Borrower or such Affiliate is not restricted
hereby from engaging with any other Person.
SECTION 10.13. Forum Selection and Consent to Jurisdiction.
-------------------------------------------
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR THE
BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF
THE STATE OF NEW YORK LOCATED IN THE CITY OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED,
--------
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
-------
OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION,
IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND
OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. THE BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW
YORK. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 10.14. Waiver of Jury Trial. THE ADMINISTRATIVE
--------------------
AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR THE
BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT
AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
DOLLAR FINANCIAL GROUP, INC.
By: /s/ Jeffrey Weiss
---------------------------
Title: President
Address: 1436 Lancaster Avenue
Berwyn, Pennsylvania 19312
Facsimile No.: (610) 296-7844
Attention: President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent
By: /s/ L. Dustin Vincent, III
--------------------------------
Title: Managing Director
Address: 231 South LaSalle Street
Chicago, Illinois 60697
Facsimile No.: (312) 974-9102
Attention: Agency Management
Services #59696
BANK OF AMERICA ILLINOIS, as Issuer
By: /s/ L. Dustin Vincent, III
-------------------------------
Title: Managing Director
Address: 231 South LaSalle Street
Chicago, Illinois 60697
Facsimile No.: (312) 987-6828
Attention: Jess Aranas
BANK OF AMERICA ILLINOIS, as a Lender
By: /s/ L. Dustin Vincent, II
---------------------------------
Title: Managing Director
-------------------------------
Domestic and
Eurodollar Offices:
231 South LaSalle Street
Chicago, Illinois 60697
Facsimile No.: (312) 828-3864
Attention: Leveraged Finance -
Chicago
LEHMAN COMMERCIAL PAPER, INC., as Documentation
Agent and as a Lender
By: /s/ Dennis J. Dee
-------------------------------
Title: Authorized Signitory
----------------------------
Domestic and
Eurodollar Offices:
Three World Financial Center
10th Floor
New York, New York 10285
Facsimile No.: (212) 528-0819
Attention: Michelle Swanson
THE FIRST NATIONAL BANK OF MARYLAND
By: /s/ Peyton J. Wise
-------------------------------
Title: Sr. Vice President
-----------------------------
Domestic and
Eurodollar Offices:
96 South George Street
York, Pennsylvania 17405
Facsimile No.: (717) 771-4917
Schedule 1.1
------------
LENDERS AND COMMITMENTS
Lender Commitment Percentage
------ ---------- ----------
Bank of America Illinois $10,000,000 40%
Lehman Commercial Paper, Inc. $ 7,500,000 30%
The First National Bank of Maryland $ 7,500,000 30%
TOTAL $25,000,000 100%
SCHEDULE I
DISCLOSURE SCHEDULE
[to be provided by the Borrower]
EXHIBIT B
---------
BORROWING BASE CERTIFICATE
Bank of America National Trust
and Savings Association,
as Administrative Agent
231 South LaSalle Street
Chicago, Illinois 60697
Gentlemen and Ladies:
This Borrowing Base Certificate is delivered to you pursuant to
the Second Amended and Restated Credit Agreement, dated as of November
__, 1996 (together with all amendments, if any, from time to time made
thereto, the "Credit Agreement"), among Dollar Financial Group, Inc.,
----------------
a New York corporation formerly known as Monetary Management
Corporation (the "Borrower"), the various financial institutions as
--------
are, or may from time to time become, parties thereto (collectively,
the "Lenders"), Lehman Commercial Paper, Inc., as documentation agent
-------
for the Lenders, and Bank of America National Trust and Savings
Association, as administrative agent (the "Administrative Agent") for
--------------------
the Lenders. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in, and section
references are to, the Credit Agreement.
For purposes of this Borrowing Base Certificate, the "Borrowing
Base Calculation Date" is __________, 199_.
1. The amount of cash of the Borrower and its Subsidiaries
held in store safes subject to the Cash Field Warehousing
Agreement as of the close of business on the day immediately
preceding the Borrowing Base Calculation Date is: $___________.
2. 90% of the amount designated in item 1 is:
------
$__________.
3. The amount of all balances (net of ACH transfers out of
such accounts) of the Borrower and its Subsidiaries held, on the
Borrowing Base Calculation Date, in bank accounts subject to
Blocked Account Letters (provided, that no Blocked Account
--------
Letters shall be required for the first 90 days following the
Restatement Date with respect to bank accounts maintained at
Wells Fargo, Society Bank or Banc Once Arizona) at the Borrowing
Base Calculation Date is: $__________.
4. The amount of all checks of the Borrower and its
Subsidiaries held at the close of business on the day immediately
preceding the Borrowing Base Calculation Date in store safes
subject to the Cash Field Warehousing Agreement to be deposited
in the Cash Concentration Account via ACH is: $_____________.
5. 90% of the amount designated in item 4 above is:
------
$__________.
6. The amount of all ACH transfers initiated the Business
Day immediately preceding the Borrowing Base Calculation Date and
transfers of same day funds initiated on the Borrowing Base
Calculation Date from the Cash Concentration Account to be
credited to bank accounts subject to Blocked Account Letters
(provided, that no Blocked Account Letters shall be required for
the first 90 days following the Restatement Date with respect to
bank accounts maintained at Wells Fargo, Society Bank or Banc One
Arizona) is: $__________.
7. 90% of the amount designated in item 6 above is: $_____
------
____.
8. The amount of the cash and checks at the Borrowing Base
Calculation Date of the Borrower and its Subsidiaries held at
those armored car carriers that have executed letters in form and
substance satisfactory to the Administrative Agent acknowledging
that they hold such cash and checks as bailee for the Borrower or
the applicable Subsidiary (provided, that no such letters shall
be required for the first 90 days following the Restatement Date)
is $__________.
9. The face amount of all Eligible Government Receivables
of the Borrower or any of its Subsidiaries at the Borrowing Base
Calculation Date is: $___________.
10. 85% of the amount designated in item 9 above is:
------
$____________.
11. The amount of all cash balances at the Borrowing Base
Calculation Date of the Borrower or any of its Subsidiaries held
in bank accounts and/or investment accounts pledged to the
Administrative Agent pursuant to pledge agreements in form and
substance satisfactory to it is: $___________.
12. As of the Borrowing Base Calculation Date, the
Borrowing Base (the sum of the amounts designated in items 2, 3,
------- -
5, 7, 8, 10 and 11) is: $__________.
- - - -- --
13. The information contained in this Borrowing Base
Certificate (including the information upon which the foregoing
calculations are based) is true and complete in all material
respects.
14. Except as disclosed in this Borrowing Base Certificate,
there has been no material adverse change in the items listed on
this certificate.
15. As of the Borrowing Base Calculation Date, the sum of
aggregate outstanding principal amount of all Loans plus the
aggregate principal amount of all Letter of Credit Outstandings
plus any Loan or Letter of Credit being requested in conjunction
with the delivery of this Borrowing Base Certificate will not
exceed the lesser of (x) the Commitment Amount and (y) the
Borrowing Base.
Borrower has caused this Borrowing Base Certificate to be
executed and delivered, and the warranties contained herein to be
made, by its Authorized Officer this ___ day of _________, ____.
DOLLAR FINANCIAL GROUP, INC.
By: __________________________
Name Printed: ________________
Title: _______________________
NYFS06...:\47\41847\0008\1710\EXHD166R.000
REAFFIRMATION
Dated as of November __, 1996
To: Bank of America National Trust and Savings Association, as
Administrative Agent, and the other financial institutions party
to the Second Amended and Restated Agreement referred to below
Please refer to: (a) the Credit Agreement dated as of
June 30, 1994, as amended prior to the date hereof, among Dollar
Financial Group, Inc., a New York corporation formerly known as
Monetary Management Corporation (the "Borrower"), various financial
institutions (the "Lenders") and Bank of America National Trust and
Savings Association ("BofA"), as agent (in such capacity, the
"Agent"); (b) the Subsidiary Guaranty (as amended prior to the date
hereof, "Subsidiary Guaranty I") dated as of June 30, 1994 and
reaffirmed on August 8, 1996 from each of the entities listed on
Schedule I hereto (the "Subsidiaries") (other than Albuquerque
Investments, Inc., Check Mart of New Mexico, Inc., Check Mart of Utah,
Inc. and Check Mart of Washington, Inc.) in favor of the Agent; (c)
the Security Agreement (Subsidiaries) (the "Subsidiary Security
Agreement") dated as of June 30, 1994 and reaffirmed on August 8, 1996
executed by each Subsidiary in favor of the Agent; (d) the Subsidiary
Guaranty dated as of September 29, 1994 and reaffirmed on August 8,
1996 executed by Albuquerque Investments, Inc., Check Mart of New
Mexico, Inc., Check Mart of Utah, Inc. and Check Mart of Washington,
Inc. in favor of the Agent ("Subsidiary Guaranty II" and, together
with Subsidiary Guaranty I, the "Subsidiary Guaranties"); (e) the
Holdings Guaranty and Pledge Agreement dated as of June 30, 1994 (as
amended prior to the date hereof, the "Holdings Guaranty and Pledge
Agreement") and reaffirmed on August 8, 1996 executed by DFG Holdings,
Inc., a Delaware corporation formerly known as Monetary Management
Holdings, Inc. ("Holdings"), in favor of the Agent; (f) the Amended
and Restated Credit Agreement dated as of August 8, 1996 (the
"Restated Agreement") among the Borrower, the Lenders (including
various new Lenders), BHF-Bank Aktiengesellschaft, as co-agent, Lehman
Brothers Commercial Paper, Inc., as documentation agent, and BofA as
administrative agent (in such capacity, the "Administrative Agent");
(g) the Amended and Restated Cash Field Warehousing Agreement dated as
of August 8, 1996 (the "Restated Cash Field Warehousing Agreement")
executed by each of the entities signing this Reaffirmation in favor
of the Administrative Agent; (h) the Amended and Restated Funds
Transfer and Indemnity Agreement dated as of August 8, 1996 (the
"Restated Funds Transfer Agreement") executed by CoreStates Bank,
N.A., the Administrative Agent and the Borrower; and (i) the Second
Amended and Restated Credit Agreement dated as of November __, 1996
(the "Second Restated Agreement") among the Borrower,
the Lenders [(including various new Lenders)] and BofA as
Administrative Agent.
Each of the undersigned hereby confirms to the Administrative
Agent and the Lenders that, after giving effect to the Second Restated
Agreement and the transactions contemplated thereby, each of the
Subsidiary Guaranties, the Subsidiary Security Agreement, the Holdings
Guaranty and Pledge Agreement, the Restated Cash Field Warehousing
Agreement and the Restated Funds Transfer Agreement (the "Documents")
continues in full force and effect and is the legal, valid and binding
obligation of each of the undersigned that is a party thereto,
enforceable against each of the undersigned in accordance with its
terms. Each of the undersigned further understands and agrees that
each reference in the Documents to the "Agent" shall be deemed to be a
reference to the Administrative Agent, each reference in the Documents
to the "Credit Agreement" shall be deemed a reference to the Second
Restated Agreement and each reference therein to "Notes" or "Loan
Documents" shall include references to the Notes and Loan Documents
under and as defined in the Second Restated Agreement.
This Reaffirmation may be signed in counterparts and by the
various parties hereto on separate counterparts. This Reaffirmation
shall be governed by the internal laws of the State of New York.
DFG HOLDINGS, INC.
By:_______________________________
Title:____________________________
MONETARY MANAGEMENT OF CALIFORNIA,
INC.
MONETARY MANAGEMENT OF NEW YORK,
INC.
MONETARY MANAGEMENT CORPORATION OF
PENNSYLVANIA, INC.
FINANCIAL EXCHANGE COMPANY OF
MICHIGAN, INC.
FINANCIAL EXCHANGE COMPANY OF OHIO,
INC.
FINANCIAL EXCHANGE COMPANY OF
PENNSYLVANIA, INC.
FINANCIAL EXCHANGE COMPANY OF
PITTSBURGH, INC.
FINANCIAL EXCHANGE COMPANY OF
VIRGINIA, INC.
ALBUQUERQUE INVESTMENTS, INC.
CHECK MART OF NEW MEXICO, INC.
CHECK MART OF UTAH, INC.
CHECK MART OF WASHINGTON, INC.
CHECK MART OF WISCONSIN, INC.
MONETARY MANAGEMENT CORP.
PACIFIC RING ENTERPRISES
L.M.S. DEVELOPMENT CORP.
By:_______________________________
Title:____________________________
MONETARY WAREHOUSING CO., INC.
By:_______________________________
Title:____________________________
Schedule I
Subsidiaries
Monetary Management of California, Inc.
Monetary Management of New York, Inc.
Monetary Management Corporation of Pennsylvania, Inc.
Financial Exchange Company of Michigan, Inc.
Financial Exchange Company of Ohio, Inc.
Financial Exchange Company of Pennsylvania, Inc.
Financial Exchange Company of Pittsburgh, Inc.
Financial Exchange Company of Virginia, Inc.
Albuquerque Investments, Inc.
Check Mart of New Mexico, Inc.
Check Mart of Utah, Inc.
Check Mart of Washington, Inc.
Check Mart of Wisconsin, Inc.
Monetary Management Corp.
Pacific Ring Enterprises
L.M.S. Development Corp.
NYFS06...:\47\41847\0008\1710\RAFD166P.340
EXHIBIT Q
ACQUISITION CERTIFICATE
Date: _________________
To: Bank of America National Trust and Savings Association, as
Administrative Agent, and the Lenders party to the Credit
Agreement referred to below.
Please refer to the Second Amended and Restated Credit Agreement
dated as of November 15, 1996 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Dollar
Financial Group, Inc., a New York corporation (the "Borrower"), the
various financial institutions as are, or may from time to time
become, parties thereto (collectively, the "Lenders"), Lehman
Commercial Paper, Inc., as documentation agent for the Lenders, and
Bank of America National Trust and Savings Association, as
administrative agent (the "Administrative Agent") for the Lenders.
Terms used but not otherwise defined herein are used herein as defined
in the Credit Agreement.
The Borrower has advised you that [it] [Name of Subsidiary] plans
to acquire [describe acquisition] (the "Acquisition") and such
Acquisition complies with Section 7.2.9(c) of the Credit Agreement.
The Borrower hereby certifies to you that the Acquisition is a
Permitted Acquisition and that :
(a) attached hereto as Exhibit 1 is (i) a statement of the
chief financial Authorized Officer of the Borrower detailing all
amounts required to consummate the Acquisition and a business
description and summary of terms of the Acquisition,
(ii) evidence that the Acquisition is being made pursuant to a
written agreement approved by all necessary parties, including
the Borrower and the related Acquisition Prospect and (iii) a
summary description of the business of such Acquisition Prospect
in substantially similar form to the reports delivered in
connection with acquisitions under the Original Credit Agreement,
(b) attached hereto as Exhibit 2 is:
(i) consolidated audited financial statements for
the related Acquisition Prospect for each of the last
three fiscal years of such Acquisition Prospect and
(ii) pro forma consolidated balance sheets,
--- -----
statements of income and cash flows and projections of
the Borrower and its Subsidiaries, calculated as of a
date reasonably near to the related Acquisition Date
for the five-year period immediately succeeding the
Acquisition giving effect to the consummation of the
Acquisition and all transactions contemplated in
connection therewith,
(c) the Borrower is in compliance with all financial
covenants in Section 7.2.4 (x) for the period of four consecutive
-------------
Fiscal Quarters ending on the last day of the last day of the
last completed Fiscal Quarter immediately preceding the date of
the Acquisition and (y) as projected by the Borrower for the
period of four consecutive Fiscal Quarters beginning on the first
day of the Fiscal Quarter in which the date of the Acquisition
occurs, which calculations, in each of clauses (x) and (y),
----------- ---
include the Adjusted EBITDA of the related Acquisition Prospect
for such entire four Fiscal Quarter Period,
(d) the Acquisition shall be consummated in accordance with
all requirements of applicable law and the Borrower and its
Subsidiaries have obtained all consents and approvals necessary
or desirable to such consummation and the business operations of
the Acquisition Prospect after such acquisition, including
governmental and contractual approvals and consents of landlords,
except those consents the failure to obtain which, in the
reasonable business judgment of the Borrower, will not result in
a material adverse effect in the business, operations, assets,
revenues, properties or prospects of the Borrower and its
Subsidiaries,
(e) no Default exists or will result from the consummation
of the Acquisition,
(f) the Person to be acquired (or its Board of Directors or
equivalent governing body) has not (i) announced it will oppose
such acquisition or (ii) commenced any action which alleges that
such acquisition violates, or will violate, any applicable law,
(g) the acquisition is not funded with the proceeds of any
Loans,
(h) the total consideration for all acquisitions (including
cash and noncash purchase price, liabilities assumed, deferred or
financed purchase price, purchase price characterized as
noncompetition payments and the like), plus the amount of all
Excess Capital Expenditures, does not exceed in the aggregate (i)
during the term of the Credit Agreement, (x) $17,000,000 less (y)
the Western Union Commission Shortfall and (ii) during the period
of four Fiscal Quarters including the current Fiscal Quarter, (x)
$15,000,000 less (y) the Western Union Commission Shortfall, and
(i) the Acquisition will be consummated on or prior to June
30, 1999.
IN WITNESS WHEREOF, the Borrower has caused this Certificate to
be executed and delivered by an Authorized Officer as of the date
first written above.
DOLLAR FINANCIAL GROUP, INC.
By:
--------------------------
Title:
-----------------------
NYFS06...:\47\41847\0008\1710\EXHD166L.440