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EXHIBIT 10.46
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
and entered into effective as of the 15th day of December, 1999 (the "Effective
Date"). Reference is made to the Credit Agreement, dated as of July 31, 1998 (as
amended, supplemented or otherwise modified and in effect on the date hereof,
the "Credit Agreement") by and among ACE CASH EXPRESS, INC., a Texas corporation
(the "Borrower"), the lenders party hereto (collectively, together with all
successors and assigns, the "Lenders") and WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION, a national banking association, as Agent (the "Agent").
PRELIMINARY STATEMENTS
A. The Borrower has requested that the Lenders extend the Revolving
Credit Termination Date and the Scheduled Advance Term Loan Termination Date to
December 13, 2000.
B. The Borrower has also requested that the Revolving Credit Commitment
be increased from One Hundred Ten Million Dollars ($110,000,000) to One Hundred
Thirty Million Dollars ($130,000,000) and that the Swingline Loan facility be
increased from Twenty Million Dollars ($20,000,000) to Twenty-Five Million
Dollars ($25,000,000).
C. The parties hereto also desire to (i) add National City Bank (herein
so called) as a Lender and (ii) remove Guaranty Federal Bank, F.S.B. ("Guaranty
Federal") as a Lender, in each case, for all purposes of the Credit Agreement.
D. It is the intention of the parties hereto that the Loans outstanding
prior to the Effective Date to or for the account of the Borrower shall continue
and remain outstanding and not be repaid on the Effective Date, but shall be
assigned and reallocated among the Lenders as provided in Section 3.02 hereof,
and, accordingly, the Loans and Commitments hereunder are not in novation or
discharge of the outstanding Loans.
E. The Borrower and Lenders further desire to amend the Credit
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
AGREEMENT
ARTICLE I. DEFINITIONS
SECTION 1.01 Certain Defined Terms. Capitalized terms used in this
Amendment are used as defined in the Credit Agreement, as amended hereby, unless
otherwise stated.
ARTICLE II. AMENDMENTS
SECTION 2.01 Amendment to Section 1.01 - Certain Defined Terms.
Effective as of the Effective Date, Section 1.01 of the Credit Agreement is
hereby amended by amending and restating the following definitions:
"`Final Maturity Date' shall mean December 15, 2004."
"`Revolving Credit Termination Date' shall mean the earlier to occur of
(a) December 13, 2000 and (b) such date as the Revolving Credit Loans
shall otherwise be payable in full and the Revolving Credit Commitment
shall terminate, expire or be canceled in accordance with the terms of
this Agreement."
"`Scheduled Advance Term Loan Termination Date' shall mean December 13,
2000."
SECTION 2.02 Amendment to Section 2.17 - Swingline Loans. Effective as
of the Effective Date, Section 2.17 of the Credit Agreement is hereby amended so
that the reference in such section to "Twenty Million Dollars ($20,000,000)"
shall read "Twenty-Five Million Dollars ($25,000,000)".
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SECTION 2.03 Amendment to Section 3.06 - Litigation; Compliance With
Laws; Etc. Effective as of the Effective Date, subsection (a) of Section 3.06 of
the Credit Agreement is hereby amended so that the phrase "Except as set forth
on Schedule 3.06 hereto," is added to the beginning of such subsection.
SECTION 2.04 Amendment to Section 5.05 - Financial Statements, Reports,
Etc. Effective as of the Effective Date, subsection (f) of Section 5.05 of the
Credit Agreement is hereby amended so that the reference in such section to "no
later than the beginning of each Fiscal Year" shall read "within ninety (90)
days after the beginning of each Fiscal Year".
SECTION 2.05 Amendment to Section 6.06 - Loans and Advances. Effective
as of the Effective Date, the "." at the end of subsection (d) of Section 6.06
of the Credit Agreement is hereby replaced with "; or", and a new subsection (e)
is added to Section 6.06 of the Credit Agreement which shall read as follows:
"(e) Loans and advances as contemplated by the Master Loan Agency
Agreement dated August 11, 1999 between Borrower and Goleta National
Bank, as in effect as of such date."
SECTION 2.06 Amendment to Section 6.18 - Limitation on Investments.
Effective as of the Effective Date, the "." at the end of subsection (e) of
Section 6.18 of the Credit Agreement is hereby replaced with "; and", and a new
subsection (f) is added to Section 6.18 of the Credit Agreement which shall read
as follows:
"(f) Purchase of participations in consumer loans originated by Goleta
National Bank in accordance with the terms and conditions of the Master
Loan Agency Agreement dated August 11, 1999 between Borrower and Goleta
National Bank, as in effect as of such date."
SECTION 2.07 Schedule 2.01(a) - Advance Term Loan Commitments.
Effective as of the Effective Date, all references in the Credit Agreement to
Schedule 2.01(a), which is entitled "Advance Term Loan Commitments", shall be
deemed references to the Schedule 2.01(a) which is attached hereto as Annex A.
SECTION 2.08 Schedule 2.01(b) - Revolving Credit Commitments. Effective
as of the Effective Date, all references in the Credit Agreement to Schedule
2.01(b), which is entitled "Revolving Credit Commitments", shall be deemed
references to the Schedule 2.01(b) which is attached hereto as Annex B.
SECTION 2.09 Schedule 3.06 - Litigation. Effective as of the Effective
Date, all references in the Credit Agreement to Schedule 3.06, which is entitled
"Litigation", shall be deemed references to the Schedule 3.06 which is attached
hereto as Annex C .
ARTICLE III. ADDITION AND REMOVAL OF LENDERS; REALLOCATION OF COMMITMENTS
SECTION 3.01 Addition and Removal of Lenders. From and after the
Effective Date, (a) National City Bank shall be a party to the Credit Agreement
and have the rights and obligations of a Lender thereunder and under the other
Credit Documents, and shall be bound by the provisions thereof, and (b) Guaranty
Federal shall relinquish its rights and be released from its obligations under
the Credit Agreement, and shall cease to be a party to the Credit Documents, but
shall nevertheless continue to be entitled to the benefits of Sections 2.10,
2.11, 2.12, 2.15 and 9.04 of the Credit Agreement.
SECTION 3.02 Reallocation of Loans and Commitments. On the Effective
Date, National City Bank (and each other Lender, if any, whose relative
proportion of its Commitment hereunder is increasing over the proportion of the
Commitment held by it prior to the Effective Date) shall, by assignments from
the Lenders which were parties to the Credit Agreement prior to the Effective
Date (the "Existing Lenders") (which assignments shall be deemed to occur
hereunder automatically, and without any requirement for additional
documentation, on the Effective Date) acquire a portion of the Loans and
Commitments of the Existing Lenders so designated in such amounts, and the
Lenders shall, through the Agent, make such other adjustments among themselves
as shall be necessary so that after giving effect to assignments and
adjustments, the Lenders shall hold all Loans outstanding under the Credit
Agreement ratably in accordance with their respective Commitments as reflected
on Schedule 2.01(a) and Schedule 2.01(b), attached hereto as Annex A and Annex
B, respectively. On the Effective Date, all Interest Periods under the Credit
Agreement in respect of any Eurodollar Loans under the Credit Agreement shall
automatically be terminated (and the Borrower shall on the Effective Date make
payments to the Existing Lenders that held such Eurodollar Loans under Section
2.09 and Section 2.12 of the Credit Agreement to compensate for such termination
as if such termination were a payment or prepayment referred to in said Sections
2.09 and 2.12), and subject
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to the other restrictions contained herein, the Borrower shall be permitted to
continue such Eurodollar Loans or to convert such Eurodollar Loans into
Alternate Base Loans hereunder.
SECTION 3.03 Adjustments Generally. On the day that is three (3)
Business Days prior to the Effective Date, the Agent shall notify each Lender of
the amount of Loans required to be made by such Lender (if any) to the Borrower
on the Effective Date, and of any other assignments or adjustments that the
Agent deems necessary and advisable such that after giving effect to the
transactions contemplated to occur on the Effective Date, each Lender's
Commitment shall be in accordance with the Commitments set forth opposite its
name on Schedule 2.01(a) and Schedule 2.01(b), attached hereto as Annex A and
Annex B, respectively. Each Lender's Loans to the Borrower shall not exceed its
pro rata portion of all Loans then outstanding to the Borrower, and the unused
Commitments of all Lenders plus all outstanding Loans under the Credit
Agreement, as amended hereby, shall not exceed the Total Commitment. Any such
assignments shall be deemed to occur hereunder automatically on the Effective
Date and without any requirement for additional documentation, and in the case
of any such assignment, the assigning party shall be deemed to represent and
warrant to each assignee that it has not created any adverse claim upon the
interest being assigned and that such interest is free and clear of any adverse
claim. Each Lender hereby agrees to give effect to the instructions of the Agent
to such Lender contained in the notice described above.
ARTICLE IV. CONDITIONS PRECEDENT
SECTION 4.01 Conditions to Effectiveness. The effectiveness of this
Amendment is subject to the satisfaction of the following conditions precedent:
(a) The Lenders shall have received (i) this Amendment, duly
executed by the Borrower and all Lenders, (ii) new Advance Term Notes,
dated as of the Effective Date but otherwise substantially in the form
of Exhibit A to the Credit Agreement, executed by the Borrower in favor
of each Lender reflecting the Advance Term Loan Commitments as amended
herein (the "New Advance Term Notes"), (iii) new Revolving Credit
Notes, dated as of the Effective Date but otherwise substantially in
the form of Exhibit B to the Credit Agreement, executed by the Borrower
in favor of each Lender reflecting the Revolving Credit Commitments as
amended herein (the "New Revolving Credit Notes"), (iv) a certificate
of the Secretary of the Borrower acknowledging (A) that the Borrower's
Board of Directors has adopted, approved, consented to and ratified
resolutions which authorize the execution, delivery and performance by
such Borrower of this Amendment, the New Advance Term Notes, the New
Revolving Credit Notes and all other Credit Documents to which the
Borrower is or is to be a party as a result of this Amendment, and (B)
the names of the officers of the Borrower authorized to sign this
Amendment, the New Advance Term Notes, the New Revolving Credit Notes,
and each of the other Credit Documents to which the Borrower is or is
to be a party as a result of this Amendment (including the certificates
contemplated herein) together with specimen signatures of such
officers, and (v) such additional documents, instruments and
information as the Lenders may reasonably request;
(b) Each of the Lenders listed below shall have received, in
consideration of this Amendment, an amendment fee (the "Amendment Fee")
equal to the amount corresponding to such Lender's name below:
Lender Amendment Fee
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Wells Fargo Bank (Texas), National Association $24,000.00
Chase Bank of Texas, National Association $17,318.18
Paribas $11,193.18
First Union National Bank $29,193.18
Bank of America, N.A. $29,193.18
National City Bank $12,500.00
(c) Confirmations of the existing Guaranty Agreements from
each Guarantor;
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(d) A legal opinion from counsel to the Borrower covering such
matters as the Agent may reasonably request;
(e) The representations and warranties contained herein and in
the Credit Agreement and the Credit Documents, as each is amended
hereby, shall be true and correct in all material respects as of the
date hereof, as if made on the date hereof (except insofar as such
representations and warranties relate expressly to an earlier date or a
date modified hereby);
(f) After giving effect to this Amendment, no Default or Event
of Default shall have occurred and be continuing; and
(g) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to the Lenders and their legal counsel.
ARTICLE V. LIMITED CONSENT
SECTION 5.01. Limited Consent. By execution of this Amendment, the
Lenders hereby consent to the Borrower's entering into the Master Loan Agency
Agreement dated August 11, 1999 between the Borrower and Goleta National Bank,
as in effect on the date hereof (the "Goleta Agreement"), and hereby waive any
Default or Event of Default arising under Sections 6.06 or 6.18 and/or Article
VII(d) of the Credit Agreement solely as a result of Borrower's entering into
the Goleta Agreement and consummating the transactions contemplated thereby.
Except as specifically provided in the preceding sentence, nothing contained in
this Amendment shall be construed as a waiver by the Agent or the Lenders of any
covenant or provision of the Credit Agreement, the other Credit Documents, this
Amendment, or of any other contract or instrument between the Borrower, the
Agent and/or the Lenders, and the failure of the Agent or the Lenders at any
time or times hereafter to require strict performance by the Borrower of any
provision thereof shall not waive, affect or diminish any right of the Agent or
the Lenders to thereafter demand strict compliance therewith. The Agent and the
Lenders hereby reserve all rights granted under the Credit Agreement, the other
Credit Documents, this Amendment and any other contract or instrument between
the Borrower, the Agent and/or the Lenders.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
SECTION 6.01 Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Lenders that (a) the
representations and warranties contained in the Credit Agreement, as amended
hereby, and in any other Credit Documents are true and correct in all material
respects on and as of the date hereof as though made on and as of the date
hereof (except insofar as such representations and warranties relate expressly
to an earlier date or a date modified hereby); (b) no Default of Event of
Default under the Credit Agreement, as amended hereby, has occurred and is
continuing; and (c) Borrower is in compliance in all material respects with all
covenants and agreements contained in the Credit Agreement and in the other
Credit Documents, as amended hereby.
ARTICLE VII. MISCELLANEOUS PROVISIONS
SECTION 7.01 Return of Previous Notes. Within five (5) Business Days
after the date on which any Lender has received its respective New Advance Term
Note and New Revolving Credit Note, such Lender shall return to the Agent the
Advance Term Note and the Revolving Credit Note executed by the Borrower in
favor of such Lender dated December 16, 1998 (individually, a "Previous Note" or
collectively, the "Previous Notes") (to the extent that such Previous Notes were
executed in favor of such Lender); provided, however, that Guaranty Federal
shall return the Previous Notes executed in its favor to the Agent within five
(5) Business Days after the Effective Date. Within five (5) Business Days after
the Agent receives any Previous Note, the Agent shall return such Previous Note
or Previous Notes to the Borrower for cancellation.
SECTION 7.02 Ratification of Credit Agreement and Other Credit
Documents. Except as expressly provided herein, (i) the Credit Agreement and all
other Credit Documents shall remain unmodified and in full force and effect as
supplemented and amended hereby, and (ii) the Borrower hereby affirms all the
provisions of the Credit Agreement, as amended hereby, and the other Credit
Documents, as amended hereby.
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SECTION 7.03 Confirmation of the Security Documents. The Borrower
hereby acknowledges and confirms that the Collateral (as defined in the Security
Documents) continues to secure the Liabilities (as defined in the Security
Documents), including those arising under the Credit Agreement, as amended
hereby.
SECTION 7.04 Counterparts. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Amendment has been executed as of the 18th day
of November, 1999, but is to be effective as of the Effective Date.
BORROWER:
ACE CASH EXPRESS, INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
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AGENT:
WELLS FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By:
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Name:
----------------------------------------
Title:
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LENDERS:
WELLS FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By:
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Name:
----------------------------------------
Title:
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CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
----------------------------------------
Title:
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BANK OF AMERICA, N.A.,
formerly known as NationsBank, N.A.
By:
------------------------------------------
Name:
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Title:
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PARIBAS
By:
------------------------------------------
Name:
----------------------------------------
Title:
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By:
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Name:
----------------------------------------
Title:
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NATIONAL CITY BANK
By:
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Name:
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Title:
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AGREED AND ACKNOWLEDGED:
GUARANTY FEDERAL BANK, F.S.B.
By:
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Name:
----------------------------------------
Title:
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ANNEX A
ADVANCE TERM LOAN COMMITMENTS
(See Attached)
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SCHEDULE 2.01(a)
ADVANCE TERM LOAN COMMITMENTS
Percentage of
Lender Commitment Commitment
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Wells Fargo Bank (Texas), National Association $10,181,818.17 29.091%
Chase Bank of Texas, National Association $ 6,190,082.61 17.686%
Paribas $ 4,126,721.88 11.791%
First Union National Bank $ 6,190,082.61 17.686%
Bank of America, N.A $ 6,190,082.61 17.686%
National City Bank $ 2,121,212.12 6.061%
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Total Advance Term Loan Commitments $35,000,000.00 100.00%
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ANNEX B
REVOLVING CREDIT COMMITMENTS
(See Attached)
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SCHEDULE 2.01(b)
REVOLVING CREDIT COMMITMENTS
Percentage of
Lender Commitment Commitment
- ------ ---------------- ----------------
Wells Fargo Bank (Texas), National Association $ 37,818,181.83 29.091%
Chase Bank of Texas, National Association $ 22,991,735.39 17.686%
Paribas $ 15,327,824.12 11.791%
First Union National Bank $ 22,991,735.39 17.686%
Bank of America, N.A $ 22,991,735.39 17.686%
National City Bank $ 7,878,787.88 6.061%
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Total Revolving Credit Commitments $ 130,000,000.00 100.00%
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