EXHIBIT 10.33
SEVENTH AMENDMENT TO AMENDED AND RESTATED
SENIOR REVOLVING CREDIT FACILITY AGREEMENT
THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED SENIOR REVOLVING CREDIT
FACILITY AGREEMENT (this "Seventh Amendment"), dated as of September 30, 2001,
is entered into among CASH AMERICA INTERNATIONAL, INC., a Texas corporation (the
"Borrower"), the lenders listed on the signature pages hereof (the "Lenders"),
BANK OF AMERICA, N.A., as Administrative Agent (in said capacity, the
"Administrative Agent").
BACKGROUND
A. Borrower, the Lenders, and the Administrative Agent are parties to
that certain Amended and Restated Senior Revolving Credit Facility Agreement,
dated as of June 19, 1996, as amended by that certain First Amendment to Amended
and Restated Senior Revolving Credit Facility Agreement, dated as of December
11, 1997, that certain Second Amendment to Amended and Restated Senior Revolving
Credit Facility Agreement, dated as of June 24, 1998, that certain Third
Amendment to Amended and Restated Senior Revolving Credit Facility Agreement,
dated as of December 11, 1998, that certain Fourth Amendment to Amended and
Restated Senior Revolving Credit Facility Agreement, dated as of February 17,
1999, that certain Fifth Amendment to Amended and Restated Senior Revolving
Credit Facility Agreement, dated as of September 15, 1999, and that certain
Sixth Amendment to Amended and Restated Senior Revolving Credit Facility
Agreement, dated as of June 30, 2000 (said Amended and Restated Senior Revolving
Credit Facility Agreement, as amended, the "Credit Agreement"; the terms defined
in the Credit Agreement and not otherwise defined herein shall be used herein as
defined in the Credit Agreement).
B. The Borrower, the Lenders, and the Administrative Agent desire to
amend the Credit Agreement to permit, among other things, the Borrower to
dispose of assets and discontinue the operations of Rent-a-Tire, Inc., a Texas
Corporation ("Rent-a-Tire").
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, and the Administrative Agent covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "Applicable Margin" set forth in Section 1.1 of
the Credit Agreement is hereby amended to read as follows:
"Applicable Margin" means, for any particular date for any
LIBOR Advance, that rate of interest per annum equal to the rate set
forth below opposite the Funded Debt Ratio which is in effect for such
particular date:
1
<Table>
<Caption>
Funded Debt Ratio Applicable Margin
----------------- -----------------
Greater than 4.35 to 1 2.50%
Greater than 3.25 to 1 but less than or equal to 4.35 to 1 2.25%
Less than or equal to 3.25 to 1 2.00%
</Table>
The Applicable Margin payable by the Borrower on the Revolving Credit
Advances outstanding hereunder shall be adjusted on each Adjustment
Date, according to the performance of the Borrower for the most recent
fiscal quarter. For purposes of the foregoing, if the financial
statements of the Borrower setting forth the Funded Debt Ratio are not
received by the Administrative Agent by the date required pursuant to
Section 5.1(a) or 5.1(b), the Applicable Margin shall be determined as
if the Funded Debt Ratio is greater than 4.35 to 1 until such time as
such financial statements are received.
(b) The definition of "Consolidated Adjusted Net Income" or
"Consolidated Adjusted Net Loss" set forth in Section 1.1 of the Credit
Agreement is hereby amended to read as follows:
"Consolidated Adjusted Net Income" or "Consolidated Adjusted
Net Loss" means, with respect to any period, consolidated net earnings
or loss from continuing operations (after income taxes) of Borrower and
its Consolidated Subsidiaries for such period, determined in accordance
with GAAP, but (a) including, during such period an amount equal to (i)
the amount, if any, that (A) the cumulative amount of cash expenditures
charged against reserves created pursuant to the discontinuance of the
operations of Rent-a-Tire, Inc., or charged to the income of
Rent-a-Tire, Inc., after September 30, 2001 through the end of such
period exceeds (B) $2,600,000, minus (ii) any such excess amount for
any periods preceding such period, and (b) excluding, (i) any gain or
loss in excess of $1,000,000 (before income taxes) arising from the
sale of capital assets during such period; and (ii) any other items
during such period which would be considered extraordinary items, in
accordance with GAAP.
(c) Section 1.1 of the Credit Agreement is hereby amended by adding the
following defined term "Rent-a-Tire Disposition" thereto in proper alphabetical
order to read as follows:
"Rent-a-Tire Disposition"means the immediate discontinuance of
operations and the disposition of assets of 21 stores owned by
Rent-A-Tire, Inc., a Texas corporation ("rent-A-Tire"), the
classification of the remaining 22 Rent-a-Tire stores as discontinued
operations, the future sale of the remaining 22 Rent-a-Tire stores, or
if the remaining 22 stores are not sold, the discontinuance of
operations and the disposition of assets of the 22 remaining
Rent-a-Tire stores.
(d) Section 6.7 of the Credit Agreement is hereby amended by amending
clause (iv) thereof to read as follows:
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"(iv) sell, transfer, lease or otherwise dispose of any of its
property or assets (including Stock of any Subsidiary) or business
except
(A) in the ordinary course of business;
(B) the Borrower may sell any tract or other parcel of
real estate having a net book value of $10,000,000 or
less,
(C) the Mr. Payroll Disposition and Investment,
(D) the Rent-a-Tire Disposition,
(E) other assets, the aggregate net book value of which
sold during any Fiscal Year shall not exceed 1.5% of
Consolidated Tangible Assets as of the last day of
the immediately preceding Fiscal Year, and
(F) the foregoing shall not operate to prevent mergers or
consolidations of any wholly-owned Subsidiary into
the Borrower or into a Guarantor or a sale, transfer
or lease of assets by any wholly-owned Subsidiary to
the Borrower or to a Guarantor.".
(e) Section 5.14(b) of the Credit Agreement is hereby amended to read
as follows:
(b) Consolidated Net Worth. The Borrower shall not permit
Consolidated Net Worth at any time to be less than the sum of (i)
$131,500,000, plus (ii) fifty percent (50%) of Consolidated Adjusted
Net Income (but only if positive) for each fiscal quarter ending after
December 31, 1995, plus (iii) an amount equal to one hundred percent
(100.0%) of any new equity raised by the Borrower after December 31,
1995, through the issuance and sale of additional capital stock of the
Borrower.
(f) Exhibit F to the Credit Agreement is hereby amended to be in the
form of Exhibit F to this Seventh Amendment.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, the Borrower represents and warrants that, as of
the date hereof and after giving effect to the amendments contemplated by the
foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement are true and correct on and as of the date hereof as if made on and as
of such date;
(b) no event has occurred and is continuing which constitutes a Default
or an Event of Default;
(c) the Borrower has full power and authority to execute and deliver
this Seventh Amendment, and this Seventh Amendment and the Credit Agreement, as
amended hereby, constitute the legal, valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable debtor relief
3
laws and by general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and except as rights to indemnity
may be limited by federal or state securities law;
(d) neither the execution, delivery and performance of this Seventh
Amendment or the Credit Agreement, as amended hereby, nor the consummation of
any transactions contemplated herein or therein, will conflict with any Law to
which the Borrower or any Subsidiary is subject, or any indenture, agreement or
other instrument to which the Borrower or any Subsidiary or any of their
respective property is subject; and
(e) no authorization, approval, consent, or other action by, notice to,
or filing with, any governmental authority or other Person (including the Board
of Directors of the Borrower), is required for the execution, delivery or
performance by the Borrower of this Seventh Amendment or the acknowledgment of
this Seventh Amendment by each Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This Seventh Amendment (and the
amendment to the Applicable Margin provided herein) shall be effective as of
September 30, 2001, subject to the following:
(a) the Administrative Agent shall have received counterparts of this
Seventh Amendment executed by the Determining Lenders;
(b) the Administrative Agent shall have received counterparts of this
Seventh Amendment executed by the Borrower and acknowledged by each Guarantor;
(c) the representations and warranties set forth in Section 2 of this
Seventh Amendment shall be true and correct; and
(d) the Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent and its counsel, such other documents,
certificates and instruments as the Administrative Agent shall require.
4. GUARANTORS ACKNOWLEDGMENT. By signing below, each of the Guarantors
(a) acknowledges and consents to the execution, delivery and performance by the
Borrower of this Seventh Amendment, (b) agrees that its obligations in respect
of its Guaranty Agreement are not released, modified, impaired or affected in
any manner by this Seventh Amendment or any of the provisions contemplated
herein and (c) acknowledges that it has no claims or offsets against, or
defenses or counterclaims to, its Guaranty Agreement.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Seventh Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Credit Agreement, as affected and amended
by this Seventh Amendment.
(b) The Credit Agreement, as amended by this Seventh Amendment, and all
other Loan Papers shall remain in full force and effect and are hereby ratified
and confirmed.
4
6. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Seventh Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto and with respect to advising the Administrative Agent
as to its rights and responsibilities under the Credit Agreement, as amended by
this Seventh Amendment).
7. EXECUTION IN COUNTERPARTS. This Seventh Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which when taken together shall constitute but one and
the same instrument.
8. GOVERNING LAW; BINDING EFFECT. This Seventh Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon the Borrower, each Lender, and the Administrative Agent
and their respective successors and assigns.
9. HEADINGS. Section headings in this Seventh Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Seventh Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS SEVENTH
AMENDMENT, AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AS TO THE SUBJECT MATTER THEREIN AND HEREIN AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
5
IN WITNESS WHEREOF, the parties hereto have executed this Seventh
Amendment as of the date first above written.
CASH AMERICA INTERNATIONAL, INC.
By: /s/ David J. Clay
------------------------------------
David J. Clay
Vice President and Treasurer
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Sharon Burks Horos
------------------------------------
Sharon Burks Horos
Vice President
WELLS FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as Documentation Agent and
as a Lender
By: /s/ Stephen C. Melton
------------------------------------
Stephen C. Melton
Vice President
BANK ONE, NA
By: /s/ Greg Crowe
------------------------------------
Greg Crowe
Vice President
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THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ John M. Mearns
------------------------------------
John M. Mearns
Vice President and Manager
THE CHASE MANHATTAN BANK
By: /s/ Allen K. King
------------------------------------
Allen K. King
Vice President
COMERICA BANK-TEXAS
By: /s/ Jeffrey D. Bundy
------------------------------------
Jeffrey D. Bundy
Corporate Banking Officer
7
ACKNOWLEDGED AND AGREED:
CASH AMERICA, INC. OF SOUTH CAROLINA
FLORIDA CASH AMERICA, INC.
GEORGIA CASH AMERICA, INC.
CASH AMERICA, INC. OF LOUISIANA
CASH AMERICA, INC. OF NORTH CAROLINA
CASH AMERICA, INC. OF TENNESSEE
CASH AMERICA, INC. OF OKLAHOMA
CASH AMERICA, INC. OF KENTUCKY
CASH AMERICA PAWN, INC. OF OHIO
CASH AMERICA MANAGEMENT L.P., a Delaware
limited partnership, by its general
partner, Cash America Holding, Inc.
CASH AMERICA PAWN L.P., a Delaware limited
partnership, by its general partner,
Cash America Holding, Inc.
CASH AMERICA HOLDING, INC.
EXPRESS CASH INTERNATIONAL CORPORATION
CASH AMERICA, INC. OF ALABAMA
CASH AMERICA, INC. OF COLORADO
CASH AMERICA, INC. OF INDIANA
CASH AMERICA, INC.
CASH AMERICA OF MISSOURI, INC.
VINCENT'S JEWELERS AND LOAN, INC.
CASH AMERICA, INC. OF UTAH
CASH AMERICA FRANCHISING, INC.
CASH AMERICA FINANCIAL SERVICES, INC.
CASH AMERICA, INC. OF ILLINOIS
UPTOWN CITY PAWNERS, INC.
DOC HOLLIDAY'S PAWN BROKERS & JEWELERS, INC.
LONGHORN PAWN & GUN, INC.
BRONCO PAWN & GUN, INC.
HORNET PAWN & GUN, INC.
TIGER PAWN & GUN, INC.
RENT-A-TIRE, INC.
MR. PAYROLL CORPORATION
By: /s/ David J. Clay
---------------------------------------
David J. Clay
Vice President and Treasurer
8
EXHIBIT F
CERTIFICATE OF COMPLIANCE
This Certificate of Compliance has been prepared and is being delivered
to Lenders pursuant to Section 5.1(e) of that certain Amended and Restated
Senior Revolving Credit Facility Agreement dated as of June 19, 1996, by and
among CASH AMERICA INTERNATIONAL, INC., a Texas corporation (the "Borrower"),
Bank of America, N.A., as Administrative Agent ("Administrative Agent") and
certain other "Lenders" as defined therein (as amended, the "Credit Agreement")
and is based upon the required review by the undersigned (in his representative
capacity but not in his individual capacity) of the activities of the Borrower
during the immediately preceding reporting period as set forth in such Section
5.1(e). The terms used herein shall have the same meanings as provided therefore
in the Credit Agreement, unless the context hereof otherwise requires or
provides.
The undersigned, hereby certifies (in his representative capacity but
not in his individual capacity) to the best of his knowledge, after reasonable
investigation that on this date all representations and warranties of the
Borrower contained in the Credit Agreement, including without limitation those
set forth in Section 5.1(e) of the Credit Agreement, and in the other Loan
Papers are true and correct and that all agreements, covenants and conditions
required by the Credit Agreement and other Loan Papers have been performed or
complied with. In particular, and without limiting the generality of the
foregoing, the undersigned, hereby certifies (in his representative capacity but
not in his individual capacity) the following as set forth in Section 5.14 of
the Credit Agreement (reference is specifically made to such Section 5.14 and
the defined terms set forth in the Credit Agreement, it being understood that
the following is only intended as a summary thereof and that any conflict or
inconsistency shall be resolved in favor of the specific provisions of the
Credit Agreement):
<Table>
<Caption>
DESCRIPTION OF COVENANT CALCULATION AS OF
(i) Leverage Ratio of not more than 0.60 to 1.0 (quarterly test)
----------------------
(Section 5.14(a) of Credit Agreement)
(ii) Consolidated Net Worth of not less than the sum of (a) of
$131,500,000 plus (b) 50% of Consolidated Adjusted Net Income ----------------------
for each fiscal quarter ending after December 31, 1995 plus
(c) 100% of new equity raised after December 31, 1995
(Section 5.14(b) of Credit Agreement)
</Table>
<Table>
(iii) Ratio of total cost of goods sold to average monthly inventory
(Consolidated basis for most recent twelve months) of not less ----------------------
than 1.60 to 1.0 as of any date (quarterly test)
(Section 5.14(c) of Credit Agreement)
(iv) Fixed Charge Coverage Ratio of not less than (a) 1.25 to 1 at
June 30, 2000 and each fiscal quarter through and including ----------------------
March 31, 2001, (b) 1.35 to 1 at June 30, 2001 and September 30,
2001, and (c) 1.50 to 1 at December 31, 2001 and each fiscal
quarter thereafter (quarterly test)
(Section 5.14(e) of Credit Agreement)
(v) Funded Debt Ratio of not greater than (a) 4.50 to 1 at June 30,
2000, (b) 5.00 to 1 at September 30, 2000 and December 31, 2000, (c) ----------------------
4.50 to 1 at March 31, 2001 and each fiscal quarter through and
including September 30, 2001, and (d) 3.50 to 1 at December 31, 2001
and each fiscal quarter thereafter (quarterly test)
(Section 5.14(f) of Credit Agreement)
</Table>
CALCULATIONS
<Table>
(i) Consolidated Funded Debt
Consolidated Funded Debt + Consolidated Net Worth
= + =
------------------ -------------------- ----------------------
(ii) $131,500,000 + 50% of Consolidated Adjusted Net Income for fiscal
quarter ending after 12/31/95 + 100% of new equity after 12/31/95
= $131,500,000.00 + + +
-------------------- -------------------- ----------------------
+ =
------------------ --------------------
</Table>
<Table>
(iii) Total cost of goods sold (excluding innoVentry Corp.)
Average monthly inventory (excluding innoVentry Corp.)
----------------------
= =
--------------------------
(iv) Consolidated Adjusted Net Income plus taxes, rents, leases and interest
expenses
taxes, rents, leases and interest expenses
= + =
------------------ -------------------- ----------------------
=
------------------
(v) Consolidated Funded Debt
Consolidated EBITDA
= + =
------------------ -------------------- ----------------------
=
------------------
</Table>
The undersigned (in his representative capacity but not his individual
capacity) also represents that to the best of his knowledge, after reasonable
investigation, no Default or Event of Default exists and is continuing on this
date, unless noted below (if such a condition, event or act is so noted, there
shall also be noted below the nature, period of existence thereof and the action
which the Company is taking or proposes to take with respect thereto):
Dated this _____ day of ________________, 20___.
CASH AMERICA INTERNATIONAL, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
[CORPORATE TREASURER OR PRESIDENT OR
CHIEF FINANCIAL OFFICER OR CONTROLLER IN
ACCORDANCE WITH SECTION 5.1(E) OF THE
CREDIT AGREEMENT]
EIGHTH AMENDMENT TO AMENDED AND RESTATED
SENIOR REVOLVING CREDIT FACILITY AGREEMENT
THIS EIGHTH AMENDMENT TO AMENDED AND RESTATED SENIOR REVOLVING CREDIT
FACILITY AGREEMENT (this "Eighth Amendment"), dated as of February 12, 2002, is
entered into among CASH AMERICA INTERNATIONAL, INC., a Texas corporation (the
"Borrower"), the lenders listed on the signature pages hereof (the "Lenders"),
BANK OF AMERICA, N.A., as Administrative Agent (in said capacity, the
"Administrative Agent").
BACKGROUND
A. The Borrower, the Lenders, and the Administrative Agent are parties
to that certain Amended and Restated Senior Revolving Credit Facility Agreement,
dated as of June 19, 1996, as amended by that certain First Amendment to Amended
and Restated Senior Revolving Credit Facility Agreement, dated as of December
11, 1997, that certain Second Amendment to Amended and Restated Senior Revolving
Credit Facility Agreement, dated as of June 24, 1998, that certain Third
Amendment to Amended and Restated Senior Revolving Credit Facility Agreement,
dated as of December 11, 1998, that certain Fourth Amendment to Amended and
Restated Senior Revolving Credit Facility Agreement, dated as of February 17,
1999, that certain Fifth Amendment to Amended and Restated Senior Revolving
Credit Facility Agreement, dated as of September 15, 1999, that certain Sixth
Amendment to Amended and Restated Senior Revolving Credit Facility Agreement,
dated as of June 30, 2000, and that certain Seventh Amendment to Amended and
Restated Senior Revolving Credit Facility Agreement, dated as of September 30,
2001 (said Amended and Restated Senior Revolving Credit Facility Agreement, as
amended, the "Credit Agreement"; the terms defined in the Credit Agreement and
not otherwise defined herein shall be used herein as defined in the Credit
Agreement).
B. The Borrower, the Lenders, and the Administrative Agent desire to
amend the Credit Agreement to provide for a letter of credit sub-facility of
$5,000,000.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, and the Administrative Agent covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is hereby amended by adding the
following defined terms thereto in proper alphabetical order to read as follows:
"Issuing Bank" means any Lender in its capacity as an issuer
of Letters of Credit hereunder.
"L/C Cash Collateral Account" has the meaning specified in
Section 2.16(g)(i) hereof.
1
"L/C Related Documents" has the meaning specified in Section
2.16(e)(i) hereof.
"Letter of Credit" means any letter of credit issued by an
Issuing Bank pursuant to Section 2.16(a) hereof.
"Letter of Credit Agreement" has the meaning specified in
Section 2.16(b) hereof.
"Letter of Credit Facility" has the meaning specified in
Section 2.16(a) hereof.
"Reimbursement Obligations" means, in respect of any Letter of
Credit as at any date of determination, the sum of (a) the maximum
aggregate amount which is then available to be drawn under such Letter
of Credit plus (b) the aggregate amount of all drawings under such
Letter of Credit not theretofore reimbursed by the Borrower.
(b) The definition of "Determining Lenders" set forth in Section 1.1 of
the Credit Agreement is hereby amended to read as follows:
"Determining Lenders" means, on any date of determination, any
combination of the Lenders having at least 66-2/3% of the aggregate
amount of the Revolving Credit Advances (which for purpose of the
calculation shall include for each Lender an amount equal to the
product of such Lender's Specified Percentage multiplied by the
aggregate principal amount of Swing Line Advances outstanding) and
participations in Letters of Credit outstanding; provided, however,
that if there are no Revolving Credit Advances or participations in
Letters of Credit outstanding hereunder, "Determining Lenders" shall
mean any combination of the Lenders whose Specified Percentages
hereunder aggregate at least 66-2/3%.
(c) The definition of "Loan Papers" set forth in Section 1.1 of the
Credit Agreement is hereby amended to read as follows:
"Loan Papers" means this Agreement, the Notes, the Guaranty
Agreements, the L/C Related Documents and any other document or
agreement executed or delivered from time to time by the Borrower, any
Subsidiary of the Borrower or any other Person in connection herewith
or as security for all or any part of the Obligations.
(d) The definition of "Obligation" set forth in Section 1.1 of the
Credit Agreement is hereby amended to read as follows:
"Obligation" means (a) all obligations of any nature (whether
matured or unmatured, fixed or contingent), including Reimbursement
Obligations, of the Borrower, any Subsidiary or any other Person to the
Lenders under the Loan Papers as they may be amended from time to time,
(b) all obligations to any Lender under or in connection with any Hedge
Agreements entered into by the Borrower or any Subsidiary and any
Lender or Lenders, and (c) all obligations of the Borrower, any
Subsidiary or any other Person for losses, damages, expenses or any
other liabilities of any kind that any Lender may suffer by reason of a
breach by the Borrower, any Subsidiary or any other Person of any
obligation, covenant or undertaking with respect to any Loan Paper.
2
(e) The definition of "Revolving Credit Advance" set forth in Section
1.1 of the Credit Agreement is hereby amended to read as follows:
"Revolving Credit Advance" means an Advance made pursuant to
Section 2.1(a) hereof and/or pursuant to Section 2.16(c) hereof in
respect of a drawing under a Letter of Credit.
(f) Section 2.1(a) of the Credit Agreement is hereby amended by
amending the first two sentences thereof to read as follows:
Each Lender severally agrees, upon the terms and subject to the
conditions of this Agreement, to make Revolving Credit Advances to the
Borrower for the purpose set forth in Section 4.13 hereof from time to
time up to and including the Maturity Date in an aggregate amount not
to exceed its Specified Percentage of the Commitment less its Specified
Percentage of the aggregate amount of all (i) Reimbursement Obligations
then outstanding and (ii) Swing Line Advances then outstanding.
Notwithstanding any provision in any Loan Paper to the contrary, in no
event shall the principal amount of all Revolving Credit Advances,
Reimbursement Obligations and Swing Line Advances exceed the
Commitment.
(g) Section 2.4(b) of the Credit Agreement is hereby amended to read as
follows:
(b) Commitment Fee. Subject to Section 10.9 hereof, the
Borrower agrees to pay to the Administrative Agent, for the account of
the Lenders, a commitment fee (the "Commitment Fee") on the average
daily unused portion of the Commitment (computed with respect to (i)
the Swing Line Bank as the product of the Swing Line Bank's Specified
Percentage times the Commitment minus the Revolving Credit Advances and
the participation in the Letters of Credit and Swing Line Advances made
by the Swing Line Bank and (ii) each other Lender as the product of
such Lender's Specified Percentage times the Commitment minus the
Revolving Credit Advances made by such Lender and the participation in
the Letters of Credit of such Lender), commencing on the Agreement Date
and continuing through the Maturity Date, at a per annum percentage of
0.25%, payable quarterly in arrears on each Quarterly Date and on the
Maturity Date. The Commitment Fee shall be computed on a basis of 365
or 366 days, as applicable, for the number of days actually elapsed.
(h) Article 2 of the Credit Agreement is hereby amended by adding a new
Section 2.16 thereto to read as follows:
2.16 Letters of Credit.
(a) The Letter of Credit Facility. The Borrower may request
the Issuing Bank, on the terms and conditions hereinafter set forth, to
issue, and the Issuing Bank shall, if so requested, issue, one or more
Letters of Credit for the account of the Borrower and/or any of its
Subsidiaries (provided that, if any Letter of Credit is issued for the
account of any Subsidiary, the Borrower shall be jointly and severally
liable with respect to such Letter of Credit pursuant to the terms of
the Letter of Credit Agreement (as defined below) governing such Letter
of Credit) from time to time on any Business Day
3
from the date of the initial Advance until the Revolving Credit
Commitment Maturity Date in an aggregate maximum amount (assuming
compliance with all conditions to drawing) not to exceed, at any time
outstanding, the lesser of (i) $5,000,000 (the "Letter of Credit
Facility") and (ii) an amount equal to the Revolving Credit Commitment
minus the aggregate principal amount of Revolving Credit Advances and
Swing Line Advances then outstanding. No Letter of Credit shall have an
expiration date (including all rights of renewal) later than the
earlier of (i) ten days prior to the Maturity Date or (ii) one year
after the date of issuance thereof (provided that any Letter of Credit
may provide for the renewal thereof for additional periods of up to one
year, which in no event extend beyond the date referred to in clause
(i) of this sentence). Immediately upon the issuance of each Letter of
Credit, the Issuing Bank shall be deemed to have sold and transferred
to each Lender, and each Lender shall be deemed to have purchased and
received from the Issuing Bank, in each case irrevocably and without
any further action by any party, an undivided interest and
participation in such Letter of Credit, each drawing thereunder and the
obligations of the Issuing Bank under this Agreement in respect thereof
in an amount equal to the product of (x) such Lender's Specified
Percentage times (y) the maximum amount available to be drawn under
such Letter of Credit (assuming compliance with all conditions to
drawing). Within the limits of the Letter of Credit Facility, and
subject to the limits referred to above, the Borrower may request the
issuance of Letters of Credit under this Section 2.16(a), repay any
Revolving Credit Advances resulting from drawings thereunder pursuant
to Section 2.16(c) hereof and request the issuance of additional
Letters of Credit under this Section 2.16(a).
(b) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 a.m. (Dallas, Texas
time) on the third Business Day prior to the date of the proposed
issuance of such Letter of Credit, by the Borrower to the Issuing Bank
and the Administrative Agent. Each Letter of Credit shall be issued
upon notice given in accordance with the terms of any separate
agreement between the Borrower and the Issuing Bank in form and
substance reasonably satisfactory to the Borrower and the Issuing Bank
providing for the issuance of Letters of Credit pursuant to this
Agreement (a "Letter of Credit Agreement"), provided that if any terms
and conditions of such Letter of Credit Agreement are inconsistent with
or more restrictive than this Agreement, this Agreement shall control.
Each such notice of issuance of a Letter of Credit by the Borrower (a
"Notice of Issuance") shall be by telephone or telecopier, specifying
therein, in the case of a Letter of Credit, the requested (i) date of
such issuance (which shall be a Business Day), (ii) maximum amount of
such Letter of Credit, (iii) expiration date of such Letter of Credit,
(iv) name and address of the beneficiary of such Letter of Credit, and
(v) form of such Letter of Credit and specifying such other information
as shall be required pursuant to the relevant Letter of Credit
Agreement. Upon sending each Notice of Issuance to the Issuing Bank,
the Borrower shall promptly send a copy thereof to the Administrative
Agent. If the requested terms of such Letter of Credit are acceptable
to the Issuing Bank in its reasonable discretion, the Issuing Bank
will, upon fulfillment of the applicable conditions set forth in
Article 3 hereof, make such Letter of Credit available to the Borrower
at its office referred to in Section 10.1 hereof or as otherwise agreed
with the Borrower in connection with such issuance. No less than once
each calendar month, the Issuing Bank shall give a summary report of
the issued and
4
outstanding Letters of Credit to the Administrative Agent, in form and
substance satisfactory to the Administrative Agent.
(c) Drawing and Reimbursement. The payment by the Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all
purposes of this Agreement the making by the Issuing Bank of a
Revolving Credit Advance, which shall bear interest at the Base Rate
Basis, in the amount of such draft (but without any requirement for
compliance with the conditions set forth in Article 3 hereof);
provided, however, if as a result of termination of the Revolving
Credit Commitment pursuant to any Debtor Relief Law the Issuing Bank is
prohibited from making a Revolving Credit Advance, the obligation of
the Borrower to repay the Issuing Bank the amount of such draft shall
bear interest at the Base Rate Basis. In the event that a drawing under
any Letter of Credit is not reimbursed by the Borrower by 12:00 noon
(Dallas, Texas time) on the first Business Day after such drawing, the
Issuing Bank shall promptly notify Administrative Agent, which shall
notify each other Lender. Each such Lender shall, on the first Business
Day following such notification, make a Revolving Credit Advance (or,
if as a result of any Debtor Relief Law, the Lenders are prohibited
from making a Revolving Credit Advance, each Lender shall fund its
participation purchased pursuant to Section 2.16(a) hereof by making
such amount available to the Administrative Agent), which shall bear
interest at the Base Rate Basis, and shall be used to repay the
applicable portion of the Issuing Bank's Advance with respect to such
Letter of Credit, in an amount equal to the amount of its participation
in such drawing for application to reimburse the Issuing Bank (but
without any requirement for compliance with the applicable conditions
set forth in Article 3 hereof) and shall make available to the
Administrative Agent for the account of the Issuing Bank, by deposit at
the Administrative Agent's office, in same day funds, the amount of
such Advance. In the event that any Lender fails to make available to
the Administrative Agent for the account of the Issuing Bank the amount
of such Advance, the Issuing Bank shall be entitled to recover such
amount on demand from such Lender together with interest thereon at a
rate per annum equal to the lesser of (i) the Highest Lawful Rate or
(ii) the Federal Funds Rate.
(d) Increased Costs. If, (i) any change or phase-in after the
Agreement Date in any law, rule, regulation, guideline or requirement
or in the interpretation thereof by any Governmental Authority charged
with the administration thereof or (ii) compliance by a Lender with any
law, rule, regulation, guideline or requirement from any central bank
or Governmental Authority (whether or not having the force of law)
adopted or promulgated after the Agreement Date shall either (A)
impose, modify or deem applicable any reserve, special deposit or
similar requirement against letters of credit or guarantees issued by,
or assets held by, or deposits in or for the account of, the Issuing
Bank or any Lender or any corporation controlling the Issuing Bank or
any Lender or (B) impose on the Issuing Bank or any Lender or any
corporation controlling the Issuing Bank or any Lender any other
condition regarding this Agreement or any Letter of Credit, and the
result of any event referred to in the preceding clause (A) or (B)
shall be to increase the cost to the Issuing Bank or any corporation
controlling the Issuing Bank of issuing or maintaining any Letter of
Credit or to any Lender or any corporation controlling such Lender of
purchasing any participation therein or making any Advance pursuant to
Section 2.16(c) hereof ("Increased Letter of Credit Costs"), then,
within 30
5
days after demand by the Issuing Bank or such Lender, the Borrower
shall, subject to Section 10.9 hereof, pay to the Issuing Bank or such
Lender, from time to time as specified by the Issuing Bank or such
Lender, additional amounts that shall be sufficient to compensate the
Issuing Bank or such Lender or any corporation controlling such Lender
for such Increased Letter of Credit Costs. A certificate as to the
amount of such Increased Letter of Credit Costs, submitted to the
Borrower by the Issuing Bank or such Lender, shall certify that such
Increased Letter of Credit Costs were actually incurred by the Issuing
Bank or such Lender, shall show in reasonable detail the reasons for
such Increased Letter of Credit Costs and an accounting of the amount
payable and the calculation used to determine in good faith such
amount, and shall be conclusive absent demonstrable error. In
determining such amount, the Issuing Bank or such Lender may use any
reasonable averaging or attribution method.
(e) Obligations Absolute. The obligations of the Borrower
under this Agreement with respect to any Letter of Credit, any Letter
of Credit Agreement and any other agreement or instrument relating to
any Letter of Credit or any Revolving Credit Advance pursuant to
Section 2.16(c) hereof shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement,
such Letter of Credit Agreement and such other agreement or instrument
under all circumstances, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement, any other Loan Document, any Letter of Credit
Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (collectively, the "L/C Related
Documents");
(ii) (A) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligation of the Borrower in respect of the Letters of Credit
or any Revolving Credit Advance pursuant to Section 2.16(c)
hereof or (B) any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that the Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any
Persons for whom any such beneficiary or any such transferee
may be acting), the Issuing Bank, any Lender or any other
Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C Related
Documents or any unrelated transaction;
(iv) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect, except to
the extent that any such forged, fraudulent, invalid,
insufficient, untrue or inaccurate statement was relied upon
as a result of the Issuing Bank's gross negligence or willful
misconduct;
6
(v) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or certificate that
does not comply with the terms of the Letter of Credit, except
for any payment made upon the Issuing Bank's gross negligence
or willful misconduct;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any guarantee, for all or any of the
Obligations of the Borrower in respect of the Letters of
Credit or any Revolving Credit Advance pursuant to Section
2.16(c) hereof; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including,
without limitation, any other circumstance that might
otherwise constitute a defense available to, or a discharge
of, the Borrower or a guarantor, other than the Issuing Bank's
gross negligence or willful misconduct.
(f) Compensation for Letters of Credit.
(i) Letter of Credit Fee. Subject to Section 10.9
hereof, the Borrower shall pay to the Administrative Agent for
the account of the Lenders according to their Specified
Percentages, a per annum fee (which shall be payable quarterly
in arrears on each Quarterly Date and on the Maturity Date)
equal to the product of (A) the Applicable Margin in effect
from time to time for Revolving Credit Advances which are
LIBOR Advances multiplied by (B) the average daily amount
available for drawing under all outstanding Letters of Credit.
Subject to Section 10.9 hereof, such fee shall be computed on
the basis of a 360-day year for the actual number of days
elapsed.
(ii) Fronting Fee. Subject to Section 10.9 hereof,
the Borrower shall pay to the Administrative Agent for the
sole account of the Issuing Bank a fronting fee in an amount
that is mutually agreeable to the Issuing Bank and the
Borrower. Subject to Section 10.9 hereof, such fee shall be
computed on the basis of a 360-day year for the actual number
of days elapsed.
(iii) Administrative Fee. Subject to Section 10.9
hereof, the Borrower shall pay, with respect to each
amendment, renewal or transfer of each Letter of Credit and
each drawing made thereunder, reasonable documentary and
processing charges in accordance with the Issuing Bank's
standard schedule for such charges in effect at the time of
such amendment, renewal, transfer or drawing, as the case may
be.
(g) L/C Cash Collateral Account.
(i) Upon the occurrence of an Event of Default and
demand by the Administrative Agent pursuant to Section 7.2(e)
hereof (except in the case of an Event of Default specified in
Section 7.1(g) or (h) hereof, without any demand or taking of
any other action by the Administrative Agent or any Lender),
the Borrower will promptly pay to the Administrative Agent in
immediately available
7
funds an amount equal to the maximum amount then available to
be drawn under the Letters of Credit then outstanding. Any
amounts so received by the Administrative Agent shall be
deposited by the Administrative Agent in a deposit account
maintained by the Administrative Agent (the "L/C Cash
Collateral Account").
(ii) As security for the payment of all Reimbursement
Obligations and for any other Obligation, the Borrower hereby
grants, conveys, assigns, pledges, sets over and transfers to
the Administrative Agent (for the benefit of the Issuing Bank
and Lenders), and creates in the Administrative Agent's favor
(for the benefit of the Issuing Bank and Lenders) a Lien in,
all money, instruments and securities at any time held in or
acquired in connection with the L/C Cash Collateral Account,
together with all proceeds thereof. The L/C Cash Collateral
Account shall be under the sole dominion and control of the
Administrative Agent and the Borrower shall have no right to
withdraw or to cause the Administrative Agent to withdraw any
funds deposited in the L/C Cash Collateral Account during the
continuance of any Event of Default. At any time and from time
to time, upon the Administrative Agent's reasonable request,
the Borrower promptly shall execute and deliver any and all
such further instruments and documents, including UCC
financing statements, as may be necessary, appropriate or
desirable in the Administrative Agent's reasonable judgment to
obtain the full benefits (including perfection and priority)
of the security interest created or intended to be created by
this paragraph (ii) and of the rights and powers herein
granted. The Borrower shall not create or suffer to exist any
Lien on any amounts or investments held in the L/C Cash
Collateral Account other than the Lien granted under this
paragraph (ii).
(iii) The Administrative Agent shall (A) apply any
funds in the L/C Cash Collateral Account on account of
Reimbursement Obligations when the same become due and
payable, and (B) after the Maturity Date, apply any proceeds
remaining in the L/C Cash Collateral Account first to pay any
unpaid Obligations then outstanding hereunder and then to
refund any remaining amount to the Borrower.
(iv) The Borrower, no more than once in any calendar
month, may direct the Administrative Agent to invest the funds
held in the L/C Cash Collateral Account (so long as the
aggregate amount of such funds exceeds any relevant minimum
investment requirement) in (A) cash or direct obligations of
the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof and (B)
one or more other types of investments permitted by the
Determining Lenders, in each case with such maturities as the
Borrower, with the consent of the Determining Lenders (which
shall not be unreasonably withheld), may specify, pending
application of such funds on account of Reimbursement
Obligations or on account of any other Obligation, as the case
may be. In the absence of any such direction from the
Borrower, the Administrative Agent shall invest the funds held
in the L/C Cash Collateral Account (so long as the aggregate
amount of such funds exceeds any relevant
8
minimum investment requirement) in one or more types of
investments with such maturities as the Administrative Agent,
with the consent of the Determining Lenders, may determine,
pending application of such funds on account of Reimbursement
Obligations or on account of any other Obligation, as the case
may be. All such investments shall be made in the
Administrative Agent's name for the account of the Lenders,
subject to the ownership interest therein of the Borrower. The
Borrower recognizes that any losses or taxes with respect to
such investments shall be borne solely by the Borrower, and
the Borrower agrees to hold the Administrative Agent and the
Lenders harmless from any and all such losses and taxes, the
Administrative Agent may liquidate any investment held in the
L/C Cash Collateral Account in order to apply the proceeds of
such investment on account of the Reimbursement Obligations as
provided in Section 2.16(g)(iii) hereof (or on account of any
other Obligation then due and payable, as the case may be)
without regard to whether such investment has matured and
without liability for any penalty or other fee incurred (with
respect to which the Borrower hereby agrees to reimburse the
Administrative Agent) as a result of such application.
(vi) After the establishment of the L/C Cash
Collateral Account pursuant to Section 2.16(g)(i) hereof, the
Borrower shall pay to the Administrative Agent the fees
customarily charged by the Administrative Agent with respect
to the maintenance of accounts similar to the L/C Cash
Collateral Account.
(vii) At such time as no Event of Default is in
existence, the Administrative Agent shall return any amount
remaining in the L/C Cash Collateral Account to the Borrower.
(i) Section 3.2 of the Credit Agreement is hereby amended to read as
follows:
Section 3.2 Conditions Precedent to All Advances and Letters
of Credit. The obligation of each Lender to make each Advance hereunder
(including the initial Advance) and the obligation of the Issuing Bank
to issue or extend each Letter of Credit is subject to fulfillment of
the following conditions immediately prior to or contemporaneously with
each such Advance or issuance or extension:
(a) With respect to Advances and each issuance or extension of
a Letter of Credit, all of the representations and warranties of the
Borrower under this Agreement, which, pursuant to Section 4.22 hereof,
are made at and as of the time of such Advance, shall be true and
correct at such time in all material respects, both before and after
giving effect to the application of the proceeds of the Advance or
Letter of Credit;
(b) The incumbency of the Authorized Signatories shall be as
stated in the certificate of incumbency delivered in the Borrower's
loan certificate pursuant to Section 3.1(a) or as subsequently modified
and reflected in a certificate of incumbency delivered to the
Administrative Agent. The Lenders may, without waiving this condition,
consider it fulfilled and a representation by the Borrower made to such
effect if no
9
written notice to the contrary, dated on or before the date of the
Advance, is received by the Administrative Agent from the Borrower
prior to the making of such Advance or issuance or extension of such
Letter of Credit;
(c) There shall not exist a Default or Event of Default
hereunder;
(d) The aggregate Advances and Letters of Credit, after giving
effect to such proposed Advance or Letter of Credit, shall not exceed
the maximum principal amount then permitted to be outstanding
hereunder; and
(e) The Administrative Agent shall have received all such
other certificates, reports, statements, opinions of counsel or other
documents as the Administrative Agent or any Lender may reasonably
request;
provided, however, that the obligation of each Lender to make a
Revolving Credit Advance pursuant to Section 2.2(g) (or fund its
participation in respect of Swing Line Advances pursuant to Section
2.2(g) hereof) and Section 2.16(c) hereof (or fund its participation in
respect of Letters of Credit pursuant to Section 2.16(c) hereof) shall
be absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, (i) the occurrence of any
Default or Event of Default, (ii) the failure of the Borrower to
satisfy any condition set forth in this Section 3.2 at the time of such
Revolving Credit Advance, or (iii) any other circumstance, happening or
event whatsoever.
(j) Section 4.13 of the Credit Agreement is hereby amended by amending
the first sentence thereof to read as follows:
The proceeds of the Revolving Credit Advances, the Swing Line
Advances and the Letters of Credit will be used for the Borrower's and
its Consolidated working capital purposes (including intercompany
loans), acquisitions (but only to the extent permitted hereunder) and
other lawful, general corporate purposes.
(k) Section 4.23 of the Credit Agreement is hereby amended to read as
follows:
Section 4.23 Survival of Representations, Etc. All
representations and warranties by the Borrower herein shall survive
delivery of the Notes and the making of the Revolving Credit Advances
and Swing Line Advances and the issuance or extension of the Letters of
Credit, and any investigation at any time made by or on behalf of the
Lenders shall not diminish the Lenders' right to rely thereon.
(l) Section 5.17(a) of the Credit Agreement is hereby amended to read
as follows:
(a) THE BORROWER AGREES TO DEFEND, PROTECT, INDEMNIFY AND HOLD
HARMLESS THE ADMINISTRATIVE AGENT, EACH LENDER, EACH OF THEIR
RESPECTIVE AFFILIATES, AND EACH OF THEIR RESPECTIVE (INCLUDING SUCH
AFFILIATES') OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS,
SHAREHOLDERS AND CONSULTANTS (INCLUDING, WITHOUT LIMITATION, THOSE
RETAINED
10
IN CONNECTION WITH THE SATISFACTION OR ATTEMPTED SATISFACTION OF ANY OF
THE CONDITIONS SET FORTH HEREIN) OF EACH OF THE FOREGOING
(COLLECTIVELY, "INDEMNITEES") FROM THE AGAINST ANY AND ALL LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING, WITHOUT
LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL FOR SUCH
INDEMNITEES IN CONNECTION WITH ANY INVESTIGATIVE, ADMINISTRATIVE OR
JUDICIAL PROCEEDING, WHETHER OR NOT SUCH INDEMNITEES SHALL BE
DESIGNATED A PARTY THERETO), IMPOSED ON, INCURRED BY, OR ASSERTED
AGAINST SUCH INDEMNITEES, IN ANY MANNER RELATING TO OR ARISING OUT OF
THIS AGREEMENT, THE OTHER LOAN PAPERS, OR ANY ACT, EVENT OR TRANSACTION
OR ALLEGED ACT, EVENT OR TRANSACTION RELATING OR ATTENDANT THERETO,
INCLUDING IN CONNECTION WITH, OR AS A RESULT OF ANY NEGLIGENCE OF THE
ADMINISTRATIVE AGENT OR ANY LENDER (OTHER THAN THOSE MATTERS RAISED
EXCLUSIVELY BY A PARTICIPANT AGAINST THE ADMINISTRATIVE AGENT OR ANY
LENDER AND NOT THE BORROWER), OR THE USE OR INTENDED USE OF THE
PROCEEDS OF THE ADVANCES OR THE LETTERS OF CREDIT HEREUNDER, OR IN
CONNECTION WITH ANY THIRD PARTY INVESTIGATION OR ANY POTENTIAL MATTER
COVERED HEREBY, BUT EXCLUDING (I) ANY CLAIM OR LIABILITY THAT ARISES AS
THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNITEE, AS FINALLY JUDICIALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION, AND (II) MATTERS RAISED BY ONE INDEMNITEE AGAINST ANOTHER
INDEMNITEE (COLLECTIVELY, "INDEMNIFIED MATTERS"). TO THE EXTENT THAT
ANY INDEMNIFIED MATTER INVOLVES ONE OR MORE INDEMNITEES, SUCH
INDEMNITEES SHALL USE THE SAME LEGAL COUNSEL UNLESS ANY INDEMNITEE IN
ITS REASONABLE DISCRETION DETERMINES THAT CONFLICTS EXIST OR MAY ARISE
IN CONNECTION WITH SUCH REPRESENTATION.
(m) Section 7.2 of the Credit Agreement is hereby amended by adding a
subsection (e) thereto to read as follows:
(e) If any Letter of Credit shall be then outstanding, the
Administrative Agent shall, upon the direction of the Determining
Lenders, make demand upon the Borrower to, and forthwith upon such
demand (but in the case of an Event of Default specified in Section
7.1(g) or (h) hereof, without any demand or taking of any other action
by the Administrative Agent or any Lender), the Borrower shall, pay to
the Administrative Agent in same day funds at the office of the
Administrative Agent for deposit in the L/C Cash Collateral Account, an
amount equal to the maximum amount available to be drawn under the
Letters of Credit then outstanding.
11
(n) Section 10.12 of the Credit Agreement is hereby amended by (i)
deleting "or" at the end of subclause (b) thereof, (ii) deleting "." at the end
of subclause (c) thereof and inserting "; or" in lieu thereof and (iii) adding
the following new subclause (d) thereto to read as follows:
(d) without the consent of the Issuing Bank, if it would alter
the rights, duties or obligations of the Issuing Bank.
(o) Article 10 of the Credit Agreement is hereby amended by adding a
new Section 10.15 thereto to read as follows:
Section 10.15 No Liability of Issuing Bank. The Borrower
assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such
Letter of Credit. Neither the Issuing Bank nor any Lender nor any of
their respective officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts
or omissions of any beneficiary or transferee in connection therewith;
(b) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (c)
payment by the Issuing Bank against presentation of documents that do
not comply with the terms of a Letter of Credit, including failure of
any documents to bear any reference or adequate reference to the Letter
of Credit; or (d) any other circumstances whatsoever in making or
failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against the Issuing Bank, and the Issuing
Bank shall be liable to the Borrower, to the extent of any direct, but
non consequential, damages suffered by the Borrower that a court of
competent jurisdiction finally judicially determines were caused by (i)
the Issuing Bank's willful misconduct or gross negligence or (ii) the
Issuing Bank's willful failure to make lawful payment under a Letter of
Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, the
Issuing Bank may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, the Borrower represents and warrants that, as of
the date hereof and after giving effect to the amendments contemplated by the
foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement are true and correct on and as of the date hereof as if made on and as
of such date;
(b) no event has occurred and is continuing which constitutes a Default
or an Event of Default;
(c) the Borrower has full power and authority to execute and deliver
this Eighth Amendment, and this Eighth Amendment and the Credit Agreement, as
amended hereby, constitute the legal, valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable debtor relief
12
laws and by general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and except as rights to indemnity
may be limited by federal or state securities law;
(d) neither the execution, delivery and performance of this Eighth
Amendment or the Credit Agreement, as amended hereby, nor the consummation of
any transactions contemplated herein or therein, will conflict with any Law to
which the Borrower or any Subsidiary is subject, or any indenture, agreement or
other instrument to which the Borrower or any Subsidiary or any of their
respective property is subject; and
(e) no authorization, approval, consent, or other action by, notice to,
or filing with, any governmental authority or other Person (including the Board
of Directors of the Borrower), is required for the execution, delivery or
performance by the Borrower of this Eighth Amendment or the acknowledgment of
this Eighth Amendment by each Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This Eighth Amendment shall be
effective as of February 12, 2002, subject to the following:
(a) the Administrative Agent shall have received counterparts of this
Eighth Amendment executed by the Determining Lenders;
(b) the Administrative Agent shall have received counterparts of this
Eighth Amendment executed by the Borrower and acknowledged by each Guarantor;
(c) the representations and warranties set forth in Section 2 of this
Eighth Amendment shall be true and correct; and
(d) the Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent and its counsel, such other documents,
certificates and instruments as the Administrative Agent shall require.
4. GUARANTORS ACKNOWLEDGMENT. By signing below, each of the Guarantors
(a) acknowledges and consents to the execution, delivery and performance by the
Borrower of this Eighth Amendment, (b) agrees that its obligations in respect of
its Guaranty Agreement are not released, modified, impaired or affected in any
manner by this Eighth Amendment or any of the provisions contemplated herein and
(c) acknowledges that it has no claims or offsets against, or defenses or
counterclaims to, its Guaranty Agreement.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Eighth Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Credit Agreement, as affected and amended
by this Eighth Amendment.
(b) The Credit Agreement, as amended by this Eighth Amendment, and all
other Loan Papers shall remain in full force and effect and are hereby ratified
and confirmed.
13
6. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Eighth Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto and with respect to advising the Administrative Agent
as to its rights and responsibilities under the Credit Agreement, as amended by
this Eighth Amendment).
7. EXECUTION IN COUNTERPARTS. This Eighth Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which when taken together shall constitute but one and
the same instrument.
8. GOVERNING LAW; BINDING EFFECT. This Eighth Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon the Borrower, each Lender, and the Administrative Agent
and their respective successors and assigns.
9. HEADINGS. Section headings in this Eighth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Eighth Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS EIGHTH
AMENDMENT, AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AS TO THE SUBJECT MATTER THEREIN AND HERE AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
14
IN WITNESS WHEREOF, the parties hereto have executed this Eighth
Amendment as of the date first above written.
CASH AMERICA INTERNATIONAL, INC.
By: /s/ David J. Clay
------------------------------------
David J. Clay
Vice President and Treasurer
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Shelly Harper
------------------------------------
Shelly Harper
Principal
WELLS FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as Documentation Agent and
as a Lender
By: /s/ Stephen C. Melton
------------------------------------
Stephen C. Melton
Vice President
BANK ONE, N.A.
By: /s/ Greg Crowe
------------------------------------
Greg Crowe
Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ John M. Mearns
------------------------------------
John M. Mearns
Vice President and Manager
JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank)
By: /s/ Allen K. King
------------------------------------
Allen K. King
Vice President
COMERICA BANK-TEXAS
By: /s/ Jeffrey D. Bundy
------------------------------------
Jeffrey D. Bundy
Corporate Banking Officer
ACKNOWLEDGED AND AGREED:
CASH AMERICA, INC. OF SOUTH CAROLINA
FLORIDA CASH AMERICA, INC.
GEORGIA CASH AMERICA, INC.
CASH AMERICA, INC. OF LOUISIANA
CASH AMERICA, INC. OF NORTH CAROLINA
CASH AMERICA, INC. OF TENNESSEE
CASH AMERICA, INC. OF OKLAHOMA
CASH AMERICA, INC. OF KENTUCKY
CASH AMERICA PAWN, INC. OF OHIO
CASH AMERICA MANAGEMENT L.P., a Delaware
limited partnership, by its general partner, Cash
America Holding, Inc.
CASH AMERICA PAWN L.P., a Delaware limited
partnership, by its general partner, Cash America
Holding, Inc.
CASH AMERICA HOLDING, INC.
EXPRESS CASH INTERNATIONAL CORPORATION
CASH AMERICA, INC. OF ALABAMA
CASH AMERICA, INC. OF COLORADO
CASH AMERICA, INC. OF INDIANA
CASH AMERICA, INC.
CASH AMERICA OF MISSOURI, INC.
VINCENT'S JEWELERS AND LOAN, INC.
CASH AMERICA, INC. OF UTAH
CASH AMERICA FRANCHISING, INC.
CASH AMERICA FINANCIAL SERVICES, INC.
CASH AMERICA, INC. OF ILLINOIS
UPTOWN CITY PAWNERS, INC.
DOC HOLLIDAY'S PAWN BROKERS & JEWELERS, INC.
LONGHORN PAWN & GUN, INC.
BRONCO PAWN & GUN, INC.
HORNET PAWN & GUN, INC.
TIGER PAWN & GUN, INC.
RENT-A-TIRE, INC.
MR. PAYROLL CORPORATION
By: /s/ David J. Clay
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David J. Clay
Vice President and Treasurer