EX-10.2 First Amendment dated as of Dec. 22, 2003

EX-10.2 4 d11768exv10w2.txt EX-10.2 FIRST AMENDMENT DATED AS OF DEC. 22, 2003 EXHIBIT 10.2 FIRST AMENDMENT DATED AS OF DECEMBER 22, 2003 LOAN AND SERVICING AGREEMENT DATED AS OF DECEMBER 18, 2002 This FIRST AMENDMENT (this "Amendment") dated as of December 22, 2003 is entered into among ACE FUNDING LLC, a Delaware limited liability company (the "Borrower"), ACE CASH EXPRESS, INC., a Texas corporation, individually ("ACE") and as Check-Casher (in such capacity, the "Check-Casher"), AUTOBAHN FUNDING COMPANY LLC, a Delaware limited liability company (the "Lender"), DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK FRANKFURT AM MAIN ("DZ Bank"), as administrative agent for Lender (in such capacity, the "Administrative Agent") and as liquidity agent for Liquidity Providers (in such capacity, the "Liquidity Agent"), and U.S. BANK NATIONAL ASSOCIATION, as collateral agent for the Secured Parties (in such capacity, the "Collateral Agent"). RECITALS WHEREAS, the parties hereto have entered into a certain Loan and Servicing Agreement dated as of December 18, 2002 (as amended, supplemented or otherwise modified from time to time, the "Loan and Servicing Agreement"); WHEREAS, the parties hereto wish to make certain amendments to the Loan and Servicing Agreement as herein provided; NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein and the Loan and Servicing Agreement, the parties hereto agree as follows: SECTION 1. Definitions. All capitalized terms used but not defined herein are used as defined in the Loan and Servicing Agreement. SECTION 2. Amendments to Loan and Servicing Agreement. Effective as of the date that the conditions set forth in Section 3 hereof are satisfied, the Loan and Servicing Agreement is hereby amended as follows: 2.1. The definition of "Usage Period" in Appendix A to the Loan and Servicing Agreement is hereby amended to replace the phrase "BBB" therein with the phrase "Baa3". 2.2. Clause (e) of the definition of "Eligible Assets" in Appendix A to the Loan and Servicing Agreement is hereby amended to read as follows: "Was automatically endorsed by the SSM to read (i) if an Electronic Presentment Agreement is in effect, "Void ACE Cash Express Void" or (ii) otherwise, "Ace Cash Express Pay to US Bank A/C #_____________." 2.3. Section 3.01(a) is hereby amended to add the following after the end of the first paragraph thereof: "Notwithstanding anything in this Agreement to the contrary, if an Electronic Presentment Agreement is not in effect, each of the Borrower and the Check-Casher covenant and agree that (i) each Vault Collection Account at an Approved Vault Bank shall consist of two deposit accounts, one of which will be used to receive deposits (the "Deposit Account") of Checks from the Approved Couriers for presentment and cashing and a second deposit account (the "Release Account") for disbursing funds to Approved Couriers for deposit into the SSMs, (ii) the Deposit Account will be established such that none of the Check-Casher, ACE or the Borrower may give directions as to the removal of funds therefrom, (iii) all proceeds from the presentment and cashing of Checks shall be swept on a daily basis from the Deposit Account to the Release Account and (iv) on a daily basis, excess funds in each Release Account not distributed to Approved Couriers on such day or to be distributed on the following day will be swept to the Trust Collection Account." 2.4. Section 5.01(v) of the Loan and Servicing Agreement is hereby replaced in its entirety as follows: "(v) [Reserved].". 2.5. A new Section 6.03 is added to the Loan and Servicing Agreement as follows: Section 6.03 Annual Usage Period Representations: Each of the Borrower, the Check-Casher and ACE represent and warrant as of the date of the start of each Usage Period that: (i) updated Schedules I, II, III, IV and V have been delivered to the Collateral Agent and the Liquidity Agent reflecting the existing Vault Collection Accounts, SSMs and Locations, Excluded SSMs and Locations, Insurance Schedule, and Check Cashing Fees, respectively, (ii) all required insurance hereunder is in full force and effect and identical to the policies provided for the prior Usage Period (or has been otherwise consented to by the Liquidity Agent) and (iii) there have been no changes to the form of Approved Cashier's Check, the form of Approved RAL Agreement, any Approved Courier Agreement, any Approved Vault Bank Agreement, any SSM Acknowledgment, any Agent Bank Acknowledgment, any Approved Tax Provider Acknowledgment, any agreements with Approved Tax Providers, any agreements with the Approved Bank 2 or any other agreement relating to the SSMs or the transportation of Cash or Checks (including any agreements referred to in Section 5.01(l), (n), (p), (q) or (w)) or the parties thereto since the prior Usage Period, or any such changes have been otherwise consented to by the Liquidity Agent. 2.6. Section 7.01(g) of the Loan and Servicing Agreement is hereby replaced in its entirety as follows: "(g) Compliance with Agreements. Comply with the terms of each of the Approved Courier Agreements, Approved Vault Bank Agreements, all agreements with Approved Tax Providers, the Electronic Presentment Agreement (if then in effect), and all agreements with Approved Banks, entered into in connection with the transactions contemplated by the Transaction Documents." 2.7. Section 7.04(n) of the Loan and Servicing Agreement is hereby replaced in its entirety as follows: "(n) Check Endorsement. Ensure that the check cashing program related to the SSMs at all times is established and operating such that each Check deposited into an SSM will be automatically endorsed: "Ace Cash Express Pay to US Bank A/C #_____________." 2.8. Section 7.04(p) of the Loan and Servicing Agreement is hereby replaced in its entirety as follows: "(p) Compliance with Agreements. Comply with the terms of each of the Approved Courier Agreements, Approved Vault Bank Agreements, all agreements with each SSM Lender, all agreements with Approved Tax Providers, the Electronic Presentment Agreement (if then in effect) and all agreements with Approved Banks entered into in connection with the transactions contemplated by the Transaction Documents.". 2.9. Section 8.01(l) of the Loan and Servicing Agreement is hereby amended by inserting, at the beginning of the section, the words, "for so long as the Electronic Presentment Agreement is in effect,". 2.10. Section 8.02 of the Loan and Servicing Agreement is hereby amended to (i) add "(a)" prior to the existing provisions and (ii) add the following new clauses to the end of such Section 8.02: (b) Letter of Credit Matters. Notwithstanding the foregoing Section 8.02(a), the Check-Casher shall have the ability to substitute a Letter of Credit for the required errors and omissions insurance referenced in such Section 8.02(a). (c) Drawings on Letter of Credit. If the Liquidity Agent determines (A) that any amount payable by the Check-Casher or ACE (but excluding amounts payable by Borrower) hereunder (including any indemnity payment) has not been paid 3 when due or the Borrower has suffered any loss related to the failure of the Check-Casher to perform any of its obligations hereunder or (B) the Borrower has suffered any loss of a nature that the Liquidity Agent has determined in its reasonable discretion would otherwise have been covered by an errors and omissions policy, the Liquidity Agent may deliver notice thereof to the Collateral Agent, which notice shall specify the aggregate unpaid amount then due and payable by the Check-Casher or ACE and/or the amount of such loss. Following receipt of such notice, the Collateral Agent shall make a drawing on the Letter of Credit for the amount specified and apply the amounts received as directed by the Liquidity Agent. (d) Letter of Credit Rating Downgrade. In the event that the Letter of Credit Bank fails to maintain a short-term unsecured debt rating of at least "Prime-1" by Moody's and "F1" by Fitch, then within two (2) Business Days after Check-Casher shall have received notice or shall have obtained actual knowledge of such event, Check-Casher shall notify the Lender, the Collateral Agent and the Liquidity Agent, and Check-Casher shall, within twenty-one (21) Business Days after giving such notice, use all reasonable efforts to obtain a replacement letter of credit for such Letter of Credit issued by a Qualified Letter of Credit Bank in an amount equal to the Letter of Credit Available Amount. If Check-Casher does not replace such Letter of Credit as aforesaid, the Collateral Agent shall make a drawing on the Letter of Credit in an amount equal to the Letter of Credit Available Amount and deposit such amount into a segregate trust account with such amounts to be held and applied in accordance with Section 8.02(c). (e) Letter of Credit Release. Upon the written instruction of the Liquidity Agent, following the earliest to occur of (i) the Usage Period Maturity Date, (ii) delivery of an errors and omissions policy in form and substance acceptable to the Liquidity Agent and (iii) the payment in full of all obligations of the Borrower, ACE and the Check-Casher under the Transaction Documents, the Collateral Agent shall release the Letter of Credit to the Check-Casher for cancellation. 2.11. Appendix A to the Loan and Servicing Agreement is hereby amended by inserting the following definitions in appropriate alphabetical sequence as follows: "Letter of Credit" means an irrevocable letter of credit issued by a Letter of Credit Bank for the benefit of the Collateral Agent with an initial stated amount of $1,000,000, as the same may be reduced or reinstated from time to time in accordance with its terms, and any letters of credit issued in substitution therefor or replacement thereof in accordance with Section 8.02. "Letter of Credit Available Amount" shall equal at any time the amount available to be drawn under the Letter of Credit at such time. "Letter of Credit Bank" means any Qualified Letter of Credit Bank. "Qualified Letter of Credit Bank" means a bank which (i) has been approved by the Liquidity Agent and (ii) has a short-term unsecured debt rating of at least "Prime-1" by Moody's and "F1" by Fitch. 4 2.12. Appendix A to the Loan and Servicing Agreement is hereby amended by replacing the following definition in its entirety as follows: ""Related Rights" means (i) all of Borrower's right, title and interest in and to all insurance claims related to the Cash or Checks, (ii) the Letter of Credit and all amounts in respect of draws made under the Letter of Credit and (iii) all of Borrower's right, title and interest in and to all Tax Filer Accounts, Refunds and RAL Agreements.". 2.13. Schedules II, III, and IV to the Loan and Servicing Agreement are hereby replaced with Schedules II, III, and IV hereto. SECTION 3. Conditions Precedent. This Amendment shall become effective on the date when: 3.1. the Administrative Agent shall have received an original counterpart (or counterparts) of this Amendment, executed and delivered by each of the parties hereto, or other evidence satisfactory to the Administrative Agent of the execution and delivery of this Amendment by such parties; 3.2. the Collateral Agent shall have received either a fully-executed copy of the Letter of Credit or a copy of an errors and omissions policy; 3.3. the Administrative Agent shall have received proof of insurance reasonably acceptable to the Administrative Agent covering any theft, destruction, or other loss of Cash while such Cash is located in an SSM naming the Collateral Agent as loss payee; 3.4. the Administrative Agent shall have received a pro forma Borrowing Base Report and a pro forma Servicing Report, prepared in respect of the proposed initial Borrowing for the 2004 Usage Period; 3.5. the Administrative Agent shall have received good standing certificate for Borrower issued by the Secretary of State of Delaware and a good standing certificate for the Check-Casher issued by the Secretary of State of Texas; 3.6. the Administrative Agent shall have received letters from the rating agencies then rating the Commercial Paper Notes confirming that the existing ratings of the Commercial Paper Notes will remain in effect after giving effect to this Amendment and otherwise affirming the existing ratings of the Commercial Paper Notes; 3.7. the Liquidity Provider shall have extended its liquidity funding commitment pursuant to Section 2.10(a) of the Liquidity Agreement to May 31, 2004 by notice in writing to the Lender of its consent to such extension; and 3.8. the Administrative Agent has confirmed receipt in immediately available funds of the Annual Commitment Fee and all other amounts payable under the Fee Letter on or prior to the date of the initial Borrowing for the 2004 Usage Period. 5 SECTION 4. Miscellaneous. 4.1. Reaffirmation of Covenants, Representations and Warranties. Upon the effectiveness of this Amendment, each of the Borrower, the Check-Casher and ACE hereby reaffirms all covenants, representations and warranties made in the Loan and Servicing Agreement to the extent the same are not amended or waived hereby and agrees that all such covenants, representations and warranties shall be deemed to have been remade as of the effective date of this Amendment. 4.2. Representations and Warranties. Each of the Borrower, the Check-Casher and ACE hereby represents and warrants that (i) this Amendment constitutes a legal, valid and binding obligation of such Person, enforceable against it in accordance with its terms and (ii) upon the effectiveness of this Amendment, no Termination Event or Event of Default shall exist. 4.3. References to Loan and Servicing Agreement. Upon the effectiveness of this Amendment, each reference in the Loan and Servicing Agreement to "this Agreement", "hereunder", "hereof", "herein", or words of like import shall mean and be a reference to the Loan and Servicing Agreement as amended hereby, and each reference to the Loan and Servicing Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Loan and Servicing Agreement shall mean and be a reference to the Loan and Servicing Agreement as amended hereby. 4.4. Effect on Loan and Servicing Agreement. Except as specifically amended above, the Loan and Servicing Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed. 4.5. No Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Lender, the Collateral Agent or Administrative Agent under the Loan and Servicing Agreement or any other document, instrument or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein, except as specifically set forth herein. 4.6. Governing Law. This Amendment, including the rights and duties of the parties hereto, shall be governed by, and construed in accordance with, the internal laws of the State of New York. 4.7. Successors and Assigns. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 4.8. Headings. The Section headings in this Amendment are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Amendment or any provision hereof. 4.9. Counterparts. This Amendment 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. 6 IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written. ACE FUNDING LLC By /s/ Mike Briskey Title: Vice President ACE CASH EXPRESS, INC. individually and as Check-Casher By /s/ Mike Briskey Title: VP Finance & Asst. Treasurer 7 AUTOBAHN FUNDING COMPANY LLC as Lender By: DZ BANK AG DEUTSCHE ZENTRAL- GENOSSENSCHAFTSBANK FRANKFURT AM MAIN By /s/ Patrick Preece Title: VP By /s/ Richard Wisniewski Title: VP DZ BANK AG DEUTSCHE ZENTRAL- GENOSSENSCHAFTSBANK FRANKFURT AM MAIN, as Administrator and as Liquidity Agent By /s/ Patrick Preece Title: VP By /s/ Richard Wisniewski Title: VP 8 U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent By /s/ Toby Robillard Title: Asst. Vice President 9 SCHEDULE II

6665 4729 MEMORIAL DRIVE DECATUR 30032 GA 6670 2561 SOUTH SENECA, SUITE 30 WICHITA 67217 KS 6682 1608 SPRING GARDEN ST. GREENSBORO 27403 NC 6687 57 N. FLORISSANT FERGUSON 63135 MO 6691 1100 NORTH MIAMI BLVD. DURHAM 27703 NC 6692 207 SKYLAND PLAZA SPRING LAKE 28390 NC 6693 2879 OWEN DRIVE FAYETTEVILLE 28306 NC 6694 1100 RALEIGH BLVD. RALEIGH 27610 NC 6695 4532 CAPITAL BLVD. RALEIGH 27604 NC 6696 1201 HARGETT STREET, SUITE A JACKSONVILLE 28540 NC 6697 1528 E MEMORIAL DRIVE UNIT #04 AHOSKIE 27910 NC 6698 735 E. DIXON BLVD SHELBY 28152 NC 6734 1062 N ARIZONA AVE CHANDLER 85225 AZ 6735 114 WEST 2ND STREET CASA GRANDE 85222 AZ 6736 4337 W BETHANY HOME RD. GLENDALE 85301 AZ 6749 122 N. BEACH STREET DAYTONA BEACH 32114 FL 6751 3228 SW 35 BLVD. GAINESVILLE 32608 FL 6757 1289-A COLUMBIA DRIVE DECATUR 30032 GA 6758 400 EAST 2ND AVE. ROME 30161 GA 6763 123 N. CRAIN HWY. SUITE B GLEN BURNIE 21061 MD 6765 2049 MCLARAN JENNINGS 63136 MO 6768 3915 RAMSEY STREET STE. 104 FAYETTEVILLE 28311 NC 6806 8824 GEYER SPRINGS RD. LITTLE ROCK 72209 AR 6807 #6 CRESTVIEW PLAZA JACKSONVILLE 72076 AR 6808 681 S. SEMORAN BLVD. ORLANDO 32807 FL 6809 2216 J.L. REDMAN PARKWAY PLANT CITY 33566 FL 6811 6420 ASHER AVE. LITTLE ROCK 72204 AR 6812 997 E. MEMORIAL BLVD. STE. 103 LAKELAND 33801 FL 6813 722 DR. M.L. KING BLVD WEST SEFFNER 33584 FL Parsons Village Square 6814 2822 N. HIAWASSEE ROAD ORLANDO 32818 FL 6815 4008 N. ARMENIA AVENUE TAMPA 33607 FL 6818 1457 HUNTER HILL ROAD ROCKY MOUNT 27804 NC 6821 805 NW 119 STREET MIAMI 33168 FL 6826 314 WILKESBORO AVE. NORTH WILKESBORO 28659 NC 6827 201 HIGHWAY 65 NORTH CONWAY 72032 AR 6595 21500 NORTHWESTERN HWY., STE. 519 SOUTHFIELD 48075 MI

11 6596 7549 E 9 MILE RD WARREN 48091 MI 6597 SOUTHLD CTR. 23000 EUREKA RD. TAYLOR 48180 MI 6598 12895 WOODWARD HIGHLAND PARK 48203 MI 6599 10765 GRAND RIVER DETROIT 48204 MI 6600 13032 GRATIOT DETROIT 48205 MI 6601 14418 GRATIOT DETROIT 48205 MI 6602 10017 JOSEPH CAMPAU HAMTRAMCK 48212 MI 6603 20200 W. 7 MILE DETROIT 48219 MI 6604 18000 VERNIER HARPER WOODS 48225 MI 6605 15570 JOY ROAD DETROIT 48228 MI 6606 16862 SCHAEFER DETROIT 48235 MI 6607 4919 CLIO ROAD FLINT 48504 MI 6681 1968 PIPESTONE BENTON HARBOR 49022 MI 6683 2032 E. EIGHT MILE ROAD DETROIT 48234 MI 6684 3610 FORT STREET LINCOLN PARK 48146 MI 6686 3415 E GENESSEE SAGINAW 48601 MI 6764 13316 E. JEFFERSON DETROIT 48215 MI 6672 117 MACARTHUR DRIVE ALEXANDRIA 71303 LA 6673 5151 PLANK ROAD BATON ROUGE 70805 LA 6613 2353 ST CLAUDE ST. NEW ORLEANS 70117 LA 6676 2135 CATON ST. NEW ORLEANS 70122 LA 6677 6003 BULLARD AVE., SUITE 6 NEW ORLEANS 70128 LA 6678 3939 TULANE AVENUE NEW ORLEANS 70119 LA 6594 2900 SOUTHEASTERN AVE. INDIANAPOLIS 46203 IN 6668 5111 W. WASHINGTON ST. INDIANAPOLIS 46241 IN 6759 4755 POST RD. INDIANAPOLIS 46226 IN 6790 5390 BROADWAY MERRILLVILLE 46410 IN 6823 4313 WALNUT ST. MCKEESPORT 15132 PA Olympia Shopping Center 6585 612 WEST BROADWAY LOUISVILLE 40202 KY 6586 1777 MONMOUTH STREET NEWPORT 41071 KY 6671 800 MADISON AVE COVINGTON 41011 KY 6761 3178 DIXIE HWY ERLANGER 41018 KY 6587 1503 E LIVINGSTON AVENUE COLUMBUS 43205 OH 6588 2147 EAKIN RD COLUMBUS 43223 OH 6589 4925 JACKMAN RD, #30 TOLEDO 43613 OH MIRACLE MILE SHOPPING CENTER 6590 10626 LORAIN AVE CLEVELAND 44111 OH 6591 13501 EUCLID AVENUE E. CLEVELAND 44112 OH 6592 5488 BROADWAY AVE CLEVELAND 44127 OH 6593 1400 S. ARLINGTON #18 AKRON 44306 OH

12 6699 3737 SOUTH HIGH ST. COLUMBUS 43207 OH 6702 370 E STATE ST ALLIANCE 44601 OH 6703 707 N. CABLE SUITE D LIMA 45805 OH 6704 2100 HARDING HWY LIMA 45804 OH 6705 1065 BECHTLE AVE. SPRINGFIELD 45504 OH 6706 4237 FULTON ROAD CLEVELAND 44144 OH 6708 16716 CHAGRIN BLVD. SHAKER HEIGHTS 44120 OH 6710 15501 EUCLID AVE. E. CLEVELAND 44112 OH 6711 4000 GLENWAY AVE. CINCINNATI 45205 OH 6712 3350 CLEVELAND AVE COLUMBUS 43224 OH 6714 1651 N. MEMORIAL DRIVE LANCASTER 43130 OH 6715 22354 LAKE SHORE BLVD EUCLID 44123 OH 6716 613 E. CENTER STREET MARION 43302 OH 6769 2590 DIXIE HWY. HAMILTON 45015 OH 6770 836 GALLIA STREET PORTSMOUTH 45662 OH 6772 4554 MONTGOMERY ROAD NORWOOD 45212 OH 6557 5209 W FOND DU LAC MILWAUKEE 53216 WI 6558 1842 SOUTH 15TH ST. MILWAUKEE 53215 WI 6609 1201 N. 35TH ST MILWAUKEE 53208 WI 6816 612 WEST BROADWAY LOUISVILLE 40202 KY 6792 2105 CIVIC CENTER DR. N. LAS VEGAS 89030 NV 6822 5209 W FOND DU LAC MILWAUKEE 53216 WI 6640 2919 & 2921 W. 38TH AVE. DENVER 80211 CO 6748 3123 SOUTH ACADEMY BLVD. COLORADO SPRINGS 80916 CO 6608 925 PIERCE STREET SIOUX CITY 51101 IA 6612 7446 N 30 ST OMAHA 68112 NE 6689 2365 O STREET LINCOLN 68510 NE 6773 4005 E. BROAD STREET WHITEHALL 43213 OH 6537 90 EAST MAIN ST NEW BRITAIN 06051 CT 6538 593 FARMINGTON AVE, #F HARTFORD 06106 CT 6774 2935 NORTH 7TH STREET HARRISBURG 17110 PA 6562 101 N 8TH ST ALLENTOWN 18101 PA 6731 163 ELECTRIC ROAD SALEM 24153 VA 6732 2323 MEMORIAL AVE. #11 A-B LYNCHBURG 24501 VA 6791 144 EAST LITTLE CREEK RD. NORFOLK 23505 VA 6802 3115 MECHANICSVILLE PIKE RICHMOND 23224 VA 6817 649 W. MAIN ST. WATERBURY 06702 CT Century Plaza of Waterbury Shopping Center 6825 411 BARNUM AVE CUTOFF STRATFORD 06614 CT Stratford Square Shopping Center

13 ~~6824 1234 MILLERSVILLE PIKE LANCASTER 17603 PA Manor Shopping Center~~

14 SCHEDULE III None. SCHEDULE IV INSURANCE REQUIREMENTS 1. Required Theft/Loss Insurance Protection
Required Theft/Loss* SSM Type Insurance Protection - ------------------------------------------------------ ~~Diebold SSMs $300,000 per SSM Source SSMs $300,000 per SSM~~
* Minimum acceptable Theft/Loss coverage 2. Required Errors and Omissions Insurance Minimum Coverage, unless Letter of Credit substituted pursuant to Section 8.02(n): $2,000,000 3. Required Fidelity Insurance Minimum Coverage: $2,000,000 4. Letter of Credit Minimum initial stated amount, pending release pursuant to Section 8.02(e): $1,000,000