EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"),
dated as of July 31, 2003, is entered into among CASH AMERICA INTERNATIONAL,
INC., a Texas corporation (the "Borrower"), the lenders listed on the signature
pages hereof as Lenders (the "Lenders"), WELLS FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as Administrative Agent, L/C Issuer and Swing Line Lender and BANK
ONE, N.A., as Documentation Agent.
BACKGROUND
A. The Borrower, certain of the Lenders, the Documentation Agent, the
Administrative Agent, the Swing Line lender and the L/C Issuer are parties to
that certain Credit Agreement, dated as of August 14, 2002, (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 has requested (a) certain amendments to the Credit
Agreement, to among other things, account for the Cashland Acquisition (as
defined in Section 1.(f) of this First Amendment and as used herein), and (b) to
add US Bank National Association and The Huntington National Bank (collectively,
"New Lenders") as lenders under the Credit Agreement.
C. The Lenders, the Documentation Agent, the Administrative Agent, the
Swing Line Lender and the L/C Issuer hereby agree to amend the Credit Agreement,
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, the Swing Line Lender, the L/C Issuer and the Administrative Agent
covenant and agree as follows:
1. AMENDMENTS.
(a) The definition of "Aggregate Revolving Commitments" set forth in
Section 1.01 of the Credit Agreement is hereby amended to read as follows:
"Aggregate Revolving Commitments" means the aggregate amount
of Revolving Commitments of the Lenders, which initially shall be
$135,000,000, as the same may be reduced or increased from time to time
pursuant to the terms of this Agreement.
(b) The definition of "Adjusted EBITDA" set forth in Section 1.01 of
the Credit Agreement is hereby amended to read as follows:
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"Adjusted EBITDA" means, with respect to any period, EBITDA
for such period adjusted to (a) to the extent included in such period,
exclude any gain resulting from the recovery of value related to the
Rent-a-Tire Disposition, (b) exclude any non-cash gain or loss
recognized on the income statement from derivative value fluctuation
during such period, and (c) upon the acquisition of any assets or
Persons permitted by Section 7.03 hereof which generate EBITDA (whether
positive or negative) or the disposition of any assets or Persons
permitted by Section 7.05 hereof which generate EBITDA (whether
positive or negative), include the actual trailing 12 month EBITDA of
the acquired assets or Person, or exclude the actual trailing 12 month
EBITDA of the disposed assets or Person, as the case may be, with
adjustments as provided in Article 11, Regulation S-X of the Securities
Act of 1933 during such period.
(c) The definition of "Applicable Rate" set forth in Section 1.01 of
the Credit Agreement is hereby amended to read as follows:
"Applicable Rate" means the following percentages per annum:
<Table>
<Caption>
PRICING EURODOLLAR
LEVEL LEVERAGE RATIO RATE BASE RATE
------------- ------------------------------------------ --------------------- -------------------
1 Less than or equal to 2.25 to 1 1.500 0.00
2 Greater than 2.25 to 1 but less than or 1.750 0.00
equal to 2.50 to 1
3 Greater than 2.50 to 1 but less than or 2.000 0.00
equal to 2.75 to 1
4 Greater than 2.75 2.250 0.00
</Table>
The Applicable Rate shall be adjusted on each Adjustment Date
as tested by using the Leverage Ratio set forth on the Compliance
Certificate on each Adjustment Date. If the financial statements
required pursuant to Section 6.01 hereof and the related Compliance
Certificate required pursuant to Section 6.02(b) hereof are not
received by the Administrative Agent by the date required, the
Applicable Rate shall be determined using Pricing Level 4 until such
time as such financial statements and Compliance Certificate are
received. Notwithstanding the foregoing, the Applicable Rate in effect
from and after the First Amendment Effective Date through the date on
which another Pricing Level would otherwise be in effect based on the
receipt of the Company's Compliance Certificate for the period ending
December 31, 2003 shall be Level 4.
(d) The definition of "Maturity Date" set forth in Section 1.01 of the
Credit Agreement is hereby amended to read as follows:
"Maturity Date" means (a) July 31, 2006, or (b) such earlier
date upon which the Revolving Commitments may be terminated in
accordance with the terms hereof.
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(e) The definition of "Swing Line Sublimit" set forth in Section 1.01
of the Credit Agreement is hereby amended to read as follows:
"Swing Line Sublimit" means an amount equal to the lesser of
(a) $5,000,000 and (b) the Aggregate Revolving Commitments. The Swing
Line Sublimit is part of, and not in addition to, the Aggregate
Revolving Commitments.
(f) Section 1.01 of the Credit Agreement is hereby amended by adding
the defined terms "Cashland Acquisition", "Cashland Seller Note", "First
Amendment", "First Amendment Effective Date" and "Increase Effective Date"
thereto in alphabetical order to read as follows:
"Cashland Acquisition" means the acquisition of substantially
all of the assets of Cashland, Inc., an Ohio corporation, pursuant to
the terms of that certain Asset Purchase Agreement, dated June 30, 2003
among the Borrower, Cashland, Inc., Schear Financial Services, Inc.,
Lee Schear and The Mafre A. Branner Irrevocable Trust (the "Cashland
Purchase Agreement") for consideration consisting of (a) at closing of
the Cashland Acquisition, (i) $31,900,000 cash, (ii) 1,000,000 shares
of Capital Stock of the Borrower and (iii) additional shares of Capital
Stock of the Borrower equal to $8,000,000 divided by the Fair Market
Value (as defined below) and (b) potential additional consideration
between September 30, 2003 and June 30, 2004, including the Cashland
Seller Note and other consideration. As used herein, the term "Fair
Market Value" means the average per share closing price of the Capital
Stock of the Borrower on the New York Stock Exchange for the twenty
(20) trading days immediately preceding the day prior to the date of
the closing of the Cashland Acquisition, provided, however, the Fair
Market Value shall not be less than $10.00 per share or greater than
$15.00 per share. In no event shall the total consideration exceed the
aggregate consideration defined in Section 1.2 of the Cashland Purchase
Agreement.
"Cashland Seller Note" means that certain subordinated
promissory note of the Borrower in the principal amount of up to
$5,000,000, the terms of which shall at all times be subordinated to
the Obligations pursuant to terms reasonably satisfactory to the
Required Lenders.
"First Amendment" means that certain First Amendment to Credit
Agreement, dated as of July 31, 2003, among the Borrower, the Lenders,
the Documentation Agent and the Administrative Agent.
"First Amendment Effective Date" means the date that all of
the conditions to effectiveness set forth in Section 3 of the First
Amendment have been satisfied.
"Increase Effective Date" has the meaning specified in Section
2.14(b) hereof.
(g) The last sentence of Section 2.05(d) is hereby amended to read as
follows:
Each such mandatory prepayment shall be made and applied as
provided in Section 2.06(d) hereof.
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(h) Section 2.05(e) of the Credit Agreement is hereby amended to read
as follows:
(e) Concurrently with the receipt of Net Proceeds from the
issuance of any Subordinated Debt by the Borrower (except the Net
Proceeds from the issuance of any Subordinated Debt utilized as
consideration for an Acquisition), the Borrower shall prepay Revolving
Loans in an aggregate principal amount equal to 50% of such Net
Proceeds. Each such mandatory prepayment shall be made and applied as
provided in Section 2.06(d) hereof.
(i) Section 2.05(f) of the Credit Agreement is hereby amended to read
as follows:
(f) Concurrently with the receipt of Net Proceeds from any
Disposition of Capital Stock of the Borrower (except the Net Proceeds
from (i) Dispositions of Capital Stock of the Borrower utilized as
consideration for an Acquisition and (ii) Dispositions of Capital Stock
of the Borrower pursuant to exercise of stock options held by employees
or directors of the Borrower), the Borrower shall prepay Revolving
Loans in an aggregate amount equal to 50% of such Net Proceeds. Each
such mandatory prepayment shall be made and applied as provided in
Section 2.06(d) hereof.
(j) The last sentence of Section 2 05(g) is hereby amended to read as
follows:
Each such mandatory prepayment shall be made and applied as
provided in Section 2.06(d) hereof.
(k) Section 2.06 of the Credit Agreement is hereby amended to read as
follows:
2.06 REDUCTION OR TERMINATION OF REVOLVING COMMITMENTS.
(a) On each date set forth below, the Aggregate Revolving
Commitments shall be automatically reduced by the amount set forth
opposite such date below minus any voluntary reductions of the
Aggregate Revolving Commitment made in accordance with Section 2.06(b):
DATE AMOUNT OF REDUCTION
---- -------------------
March 31, 2004 $5,000,000
March 31, 2005 $5,000,000
March 31, 2006 $10,000,000
(b) The Borrower may, upon notice to the Administrative Agent,
terminate the Aggregate Revolving Commitments, or permanently reduce
the Aggregate Revolving Commitments to an amount not less than the then
Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C
Obligations; provided that (i) any such notice shall be received by the
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Administrative Agent not later than 11:00 a.m., five Business Days
prior to the date of termination or reduction, and (ii) any such
partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof. The Administrative
Agent shall promptly notify the Lenders of any such notice of reduction
or termination of the Aggregate Revolving Commitments. Reductions in
the Aggregate Revolving Commitments pursuant to this Section 2.06(b)
shall be applied to the then remaining reductions set forth in Section
2.06(a) in the order of scheduled date for reduction.
(c) The Aggregate Revolving Commitments shall also be
permanently reduced by the amount of Revolving Loans required to be
prepaid (whether or not any Revolving Loans are then outstanding)
pursuant to Section 2.05(d), (e), (f) and (g) hereof; provided,
however, the Aggregate Revolving Commitments shall not be permanently
reduced by any amount of Revolving Loans required to be prepaid with
the Net Proceeds from the Disposition of real estate acquired by the
Borrower or any of its Subsidiaries after the Closing Date and sold
pursuant to a sale and leaseback permitted by Section 7.15 hereof.
(d) Any reduction of the Aggregate Revolving Commitments shall
be applied to the Revolving Commitment of each Lender according to its
Pro Rata Share. All fees accrued until the effective date of any
termination of the Aggregate Revolving Commitments shall be paid on the
effective date of such termination. Once reduced in accordance with
this Section, the Aggregate Revolving Commitments may not be increased
except pursuant to Section 2.14.
(l) A new Section 2.14 is hereby added to the Credit Agreement in
numerical order to read as follows:
2.14 INCREASE IN COMMITMENTS.
(a) During the period from the date that is one (1) year after
the First Amendment Effective Date until the Maturity Date, provided no
Default or Event of Default exists and is continuing and upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the
Borrower may from time to time, request an increase in the Aggregate
Revolving Commitments by an aggregate amount of up to $15,000,000;
provided, however, any increase in the Aggregate Revolving Commitments
shall not be less than $5,000,000 (and shall be in integral multiples
of $1,000,000 if in excess thereof). At the time of sending such
notice, the Borrower (in consultation with the Administrative Agent)
shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten (10) Business Days
from the date of delivery of such notice to the Lenders). Each Lender
shall notify the Administrative Agent within such time period whether
or not it agrees to increase its Revolving Commitment and, if so,
whether by an amount equal to, greater than, or less than its Pro Rata
Share of such requested increase. Any Lender not responding within such
time period shall be deemed to have declined to increase its Revolving
Commitment.
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The Administrative Agent shall notify the Borrower and each Lender of
the Lenders' responses to each request made hereunder. To achieve the
full amount of a requested increase, the Borrower may also invite
additional Eligible Assignees to become Lenders pursuant to a joinder
agreement in form and substance satisfactory to the Administrative
Agent and its counsel.
(b) If the Aggregate Revolving Commitments are increased in
accordance with this Section 2.14, the Administrative Agent and the
Borrower shall determine the effective date (the "Increase Effective
Date") and the final allocation of such increase. The Administrative
Agent shall promptly notify the Borrower and the Lenders of the final
allocation of such increase and the Increase Effective Date. As a
condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed
by a Responsible Officer of such Loan Party (i) certifying and
attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A)
the representations and warranties contained in Article V and the other
Loan Documents are true and correct on and as of the Increase Effective
Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and
correct as of such earlier date, and except that for purposes of this
Section 2.14, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the
most recent statements furnished pursuant to subsections (a) and (b),
respectively, of Section 6.01, and (B) no Default exists. On the
Increase Effective Date, each Lender shall, to the extent necessary,
make a payment to the Administrative Agent in an amount sufficient,
upon the application of such payments by all Lenders to the reduction
of outstanding Loans held by the Lenders, to cause the principal amount
of Loans outstanding made by each Lender to be in the amount of its Pro
Rata Share (upon the Increase Effective Date) of all outstanding Loans.
The Borrower hereby irrevocably authorizes each Lender to fund to the
Administrative Agent the payment required to be made pursuant to the
immediately preceding sentence for application to the reduction of the
outstanding Loans held by the other Lenders. If, as a result of the
repayment of Loans provided for in this Section 2.14, any payment of
Eurodollar Rate Loans occurs on a day which is not the last day of the
applicable Interest Period, the Borrower will pay to the Administrative
Agent for the benefit of any Lender holding a Eurodollar Rate Loan any
loss or cost incurred by such Lender resulting therefrom in accordance
with Section 3.05.
(c) This Section shall supersede any provisions in Sections
2.13 or 10.01 to the contrary.
(m) A new Section 5.22 is hereby added to the Credit Agreement in
numerical order to read as follows:
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SECTION 5.22 TAX SHELTER REGULATIONS. The Borrower does not
intend to treat the Loans and/or Letters of Credit and related
transactions as being a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4). In the event the Borrower
determines to take any action inconsistent with such intention, it will
promptly notify the Administrative Agent thereof. If the Borrower so
notifies the Administrative Agent, the Borrower acknowledges that one
or more of the Lenders may treat its Revolving Loans and/or its
interest in Swing Line Loans and/or Letters of Credit as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1,
and such Lender or Lenders, as applicable, will maintain the lists and
other records required by such Treasury Regulation.
(n) Section 6.02 of the Credit Agreement is hereby amended by (i)
deleting "and" at the end of clause (e) thereof; (ii) deleting "." at the end of
clause (f) thereof and inserting "; and" in lieu thereof; and (iii) adding the
following new clause (g) thereto to read as follows:
(g) promptly after the Borrower has notified the
Administrative Agent of any intention by the Borrower to treat the
Loans and/or Letters of Credit and related transactions as being a
"reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4), a duly completed copy of IRS Form 8886 or any
successor form.
(o) Section 6.12 of the Credit Agreement is hereby amended to read as
follows:
6.12 USE OF PROCEEDS. The Borrower shall use the proceeds of
the Credit Extensions (i) to consummate the Cashland Acquisition, (ii)
to refinance certain existing indebtedness of the Borrower and (iii)
for working capital and other general corporate purposes not in
contravention of any Law or of any Loan Document.
(p) Section 7.02(n) of the Credit Agreement is hereby amended by
deleting the reference to "Section 2.06(g)" in the last line thereof and
substituting "Section 2.05(g)" in lieu thereof;
(q) Section 7.02 of the Credit Agreement is hereby amended by (i)
deleting "and" at the end of clause (q) thereof; (ii) inserting " and" at the
end of clause (r) thereof; and (iii) adding the following new clause (s) thereto
to read as follows:
(s) Indebtedness of the Borrower in respect of the Cashland
Seller Note.
(r) Section 7.03(f) of the Credit Agreement is hereby amended to read
as follows:
(f) Acquisitions (other than the Cashland Acquisition),
provided (i) the assets, property or business being acquired shall be
in the types of businesses described in Section 5.19 hereof, (ii) such
Acquisition shall not be opposed by the board of directors (or other
governing body) of the Person being
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acquired, (iii) promptly upon becoming available and in any event
within ten (10) days prior to any proposed Acquisition involving
Acquisition Consideration equal to or greater than $5,000,000 but less
than $10,000,000, the Administrative Agent shall have received written
notice of such Acquisition, (iv) if the Acquisition Consideration for
such Acquisition is equal to or greater than $10,000,000, the
Administrative Agent shall have received, promptly upon becoming
available and in any event within thirty (30) days prior to such
proposed Acquisition, (A) written notice of such Acquisition, (B) a pro
forma income statement and balance sheet prepared in accordance with
GAAP prepared by the Borrower and taking into effect such Acquisition,
and such other information as the Administrative Agent may reasonably
request regarding such Acquisition, in addition to any information
required with respect to any new Domestic Subsidiary (if applicable)
under Section 6.15 hereof, (C) audited financial statements at least 30
days prior to such proposed Acquisition, completed for a period no
earlier than fifteen (15) months prior to the date of the proposed
Acquisition, or, if such audited financial statements are not
available, the Borrower shall provide verification of the Adjusted
EBITDA of the Subsidiary being acquired, in form and substance
satisfactory to the Required Lenders, which at the Required Lender's
sole discretion may require verification by an outside accounting firm,
at Borrower's expense, satisfactory to Administrative Agent, and (D) a
Compliance Certificate setting forth the covenant calculations both
immediately prior to and after giving effect to the proposed
Acquisition and certifying that no Default or Event of Default exists
or would occur as a result therefrom, (v) the aggregate Acquisition
Consideration for all Acquisitions (excluding from such calculation the
Cashland Acquisition) in each fiscal year shall not exceed the sum of
(A) $15,000,000 plus (B) the amount, if any, not to exceed $5,000,000,
that the aggregate Acquisition Consideration for all Acquisitions
(excluding from such calculation the Cashland Acquisition) in the
immediately preceding fiscal year is less than $15,000,000 and (vi) the
Acquisition Consideration for any single Acquisition (excluding from
such calculation the Cashland Acquisition) shall not exceed $10,000,000
without the Required Lenders approval,
(s) Section 7.03 of the Credit Agreement is hereby amended by (i)
deleting "; and" at the end of clause (j) thereof and inserting "," in lieu
thereof; (ii) deleting "." at the end of clause (k) thereof and inserting ",
and" in lieu thereof; and (iii) adding the following new clause (l) thereto to
read as follows:
(l) the Cashland Acquisition.
(t) Section 7.13 of the Credit Agreement is amended to read as follows:
7.13 ISSUANCE OF SHARES. The Borrower shall not, and shall not
permit any of its Subsidiaries to issue, sell or otherwise dispose of,
any shares of its Capital Stock or other securities, or rights,
warrants or options to purchase or acquire any shares or securities
unless (a) the Net Proceeds from the issuance thereof are applied as
required pursuant to Section 2.05(f) hereof, (b) the Capital
8
Stock is issued in respect of an initial capitalization of a
Subsidiary, or (c) the Capital Stock is issued as Acquisition
Consideration for an Acquisition permitted by Section 7.03(f) or
Section 7.03(l) hereof.
(u) Section 7.19 of the Credit Agreement is hereby amended to read as
follows:
7.19 FINANCIAL COVENANTS.
(a) Maximum Leverage Ratio. The Borrower shall not permit the
Leverage Ratio as of the end of any fiscal quarter of the Borrower
ending during any period set forth below to be greater than the ratio
set forth below opposite such period:
<Table>
<Caption>
Period Maximum Leverage Ratio
------ ----------------------
First Amendment Effective Date through December 31, 3.25 to 1.00
2003
March 31, 2004 through December 31, 2004 3.00 to 1.00
March 31, 2005 and thereafter 2.50 to 1.00
</Table>
(b) Minimum Fixed Charge Coverage Ratio. The Borrower shall
not permit the Fixed Charge Coverage Ratio to be less than 1.50 to 1.00
at the end of any fiscal quarter.
(c) Maximum Adjusted Funded Debt to Total Capitalization. The
Borrower shall not permit the ratio of (i) Adjusted Funded Debt to (ii)
Total Capitalization to be greater than 0.50 to 1.00 at the end of any
fiscal quarter.
(d) Minimum Inventory Turnover. The Borrower shall not permit,
as of the end of any fiscal quarter, the ratio of (i) costs of goods
sold by the Borrower and its Subsidiaries for the most recent twelve
months to (ii) average monthly inventory of the Borrower and its
Subsidiaries (based on the sum of the thirteen amounts of fiscal month
end inventory balance of the Borrower and its Subsidiaries for the most
recent thirteen fiscal months of the Borrower, divided by thirteen) to
be less than 1.70 to 1.0.
(e) Minimum Net Worth. The Borrower shall not permit Net Worth
to be less than the sum of (i) $173,173,000, plus (ii) 50% of Net
Income (with no deduction for net losses during any quarterly period)
after March 31, 2002, plus (iii) 100% of the Net Proceeds received by
the Borrower and its Subsidiaries from the issuance and sale of Capital
Stock of the Borrower or any Subsidiary (other than issuance to the
Borrower or a wholly-owned Subsidiary), including any conversion of
debt securities of the Borrower into such Capital Stock after the
Closing Date.
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(f) Capital Expenditures. The Borrower and its Subsidiaries
shall not directly or indirectly make Capital Expenditures in an
aggregate amount in excess of $30,000,000 during any fiscal year,
excluding Capital Expenditures for fixed assets acquired pursuant to an
Acquisition permitted by Section 7.03(f) or Section 7.03(l) hereof;
provided, however, that so long as no Default or Event of Default has
occurred and is continuing or would result from such Capital
Expenditure, any portion of the annual $30,000,000 permitted Capital
Expenditure not in excess of $5,000,000, which is not expended in the
fiscal year for which it is permitted may be carried over for
expenditure in the next following year only.
(v) Section 10.08 of the Credit Agreement is hereby amended to
read as follows:
10.08 CONFIDENTIALITY. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and required to
keep such Information confidential) with respect to the monitoring and
administration of this Agreement or any other Loan Documents; (b) to
the extent compelled by any regulatory authority; (c) to the extent
required by applicable laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of
rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of
or Participant in, any of its rights or obligations under this
Agreement or (ii) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit
derivative transaction relating to obligations of the Borrower; (g)
with the written consent of the Borrower; (h) to the extent such
Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative
Agent or any Lender on a nonconfidential basis from a source other than
the Borrower; or (i) only to the extent required, to the National
Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires
access to information about a Lender's or its Affiliates' investment
portfolio in connection with ratings issued with respect to such Lender
or its Affiliates. For the purposes of this Section, "Information"
means all information received from the Borrower relating to the
Borrower, its Affiliates or their respective businesses, other than any
such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower
after the date hereof, such information is clearly identified at the
time of disclosure as confidential. Any
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Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligations to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person
would accord to its own confidential Information.
Notwithstanding anything to the contrary, "Information" shall
not include, and the Administrative Agent and each Lender may disclose
without limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" (in each case, within the meaning
of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions
or other tax analyses) that are provided to the Administrative Agent or
such Lender relating to such tax treatment and tax structure; provided
that with respect to any document or similar item that in either case
contains information concerning the tax treatment or tax structure of
the transaction as well as other information, this sentence shall only
apply to such portions of the document or similar item that relate to
the tax treatment or tax structure of the Loans, Letters of Credit and
transactions contemplated hereby.
(w) Schedule 2.01 is hereby amended to be in the form of Schedule 2.01
to this First Amendment, and the Revolving Commitment of each Lender, after
giving effect to this First Amendment, is set forth on such Schedule 2.01.
(x) Schedule 10.02 is hereby amended to be in the form of Schedule
10.02 to this First Amendment.
(y) Exhibit B to the Credit Agreement is hereby amended to be in the
form of Exhibit B to this First 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:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on and as of the
date hereof as made on and as of such date;
(b) no event has occurred and is continuing which constitutes a Default
or an Event of Default;
(c) (i) the Borrower has full power and authority to execute and
deliver this First Amendment, the Revolving Loan Note payable to the order of
each New Lender (collectively, the "New Notes"), the replacement Revolving Loan
Note payable to the order of each Lender whose Commitment has been amended
pursuant to this First Amendment (collectively, the "Replacement Notes"), the
replacement Swing Line Note payable to the order of Swing Line Lender (the
"Swing Line Note") (ii) this First Amendment, the New Notes, the Replacement
Notes and the Swing Line Note have been duly executed and delivered by the
Borrower, and
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(iii) this First Amendment, the New Notes, the Replacement Notes,
the Swing Line Note and the Credit Agreement, as amended hereby, constitute the
legal, valid and binding obligations of the Borrower, enforceable in accordance
with their respective terms, except as enforceability may be limited by
applicable debtor relief laws and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and except as
rights to indemnity may be limited by federal or state securities laws;
(d) (i) Cashland Financial Services, Inc., a Delaware corporation
("Cashland Financial") has full power and authority to execute and deliver the
Guaranty (ii) the Guaranty has been duly executed and delivered by Cashland
Financial and (iii) the Guaranty, constitutes the legal, valid and binding
obligation of Cashland Financial, enforceable in accordance with its terms,
except as enforceability may be limited by applicable debtor relief laws and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and except as rights to indemnity may be limited
by federal or state securities laws;
(e) neither the execution, delivery and performance of this First
Amendment, the New Notes, the Replacement Notes, the Swing Line Note, the
Guaranty or the Credit Agreement, as amended hereby, nor the consummation of any
transactions contemplated herein or therein, will conflict with any Law or
Organization Documents of the Borrower or Cashland Financial, or any indenture,
agreement or other instrument to which the Borrower or Cashland Financial or any
of their properties are subject; and
(f) no authorization, approval, consent, or other action by, notice to,
or filing with, any governmental authority or other Person not previously
obtained is required for (i) the execution, delivery or performance by the
Borrower of this First Amendment, the New Notes, the Replacement Notes or the
Swing Line Note, (ii) the acknowledgement by each Guarantor of this First
Amendment or (iii) the execution, delivery or performance by New Subsidiary of
the Guaranty.
3. CONDITIONS TO EFFECTIVENESS. This First Amendment shall be effective
(and the revisions to the definition of "Applicable Rate" set forth in Section
1(c) hereof will go into effect) upon satisfaction or completion of the
following:
(a) the Administrative Agent shall have received counterparts of this
First Amendment executed by all of the Lenders;
(b) the Administrative Agent shall have received counterparts of this
First Amendment executed by the Borrower and acknowledged by each Guarantor;
(c) the Administrative Agent shall have received a Guaranty executed by
Cashland Financial substantially in the form of Exhibit C to the Credit
AGREEMENT (the "Guaranty");
(d) the Administrative Agent shall have received a certified resolution
of the Board of Directors of the Borrower authorizing the execution, delivery
and performance of this First Amendment, the New Notes and the Replacement
Notes;
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(e) the Administrative Agent shall have received an officer's
certificate of New Subsidiary establishing the identities of and certifying the
authority and capacity of each Responsible Officer thereof authorized to act as
a Responsible Officer in connection with the Credit Agreement and the Guaranty
and attaching (i) certified copies of Cashland Financial's Organization
Documents, (ii) certified resolutions of the Board of Directors of Cashland
Financial authorizing the execution, delivery and performance of the Guaranty,
and (iii) certificates of good standing and/or qualification to engage in
business and tax clearance certificates.
(f) the Administrative Agent shall have received an opinion of the
Borrower's General Counsel, as counsel to the Borrower and Cashland Financial,
in form and substance satisfactory to the Administrative Agent, with respect to
matters set forth in Sections 2(c), (d), (e) and (f) of this First Amendment;
(g) the Administrative Agent shall have received a duly executed (i)
New Note for each New Lender, (ii) Replacement Note for each Lender whose
Commitment is being amended by this First Amendment and (iii) Swing Line Note;
(h) receipt and satisfactory review by the Lenders of due diligence
information on the Cashland Acquisition;
(i) the Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent (i) a final statement of sources and
uses of funds regarding the (x) Cashland Acquisition at the initial closing
date, (y) refinancing of existing indebtedness pursuant to this First Amendment
and (z) fee and expense payments contemplated by this First Amendment, (ii)
final projected financial statements (including balance sheets and statements of
operations) of the Borrower and its subsidiaries for the three-year period after
the First Amendment Effective Date, (iii) a pro forma opening balance sheet for
the Borrower and its subsidiaries as of the First Amendment Effective Date after
giving effect to the Cashland Acquisition and this First Amendment, and (iv) a
pro-forma projected Compliance Certificate as of June 30, 2003 setting forth the
covenant calculations both immediately prior to and after giving effect to the
Cashland Acquisition and certifying that no Default or Event of Default exists
or would occur as a result therefrom;
(j) the Cashland Acquisition shall have closed on the terms set forth
in the Cashland Purchase Agreement; and
(k) 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. PAYMENTS BY LENDERS. Upon the effective date of this First
Amendment, each Lender shall, to the extent necessary, make a payment to the
Administrative Agent in an amount sufficient, upon the application of such
payments by all Lenders to the reduction of outstanding Loans held by the
Lenders, to cause the principal amount of Loans outstanding made by each Lender
to be in the amount of its Pro Rata Share (after giving effect to this First
Amendment) of
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all outstanding Loans. The Borrower hereby irrevocably authorizes
each Lender to fund to the Administrative Agent the payment required to be made
pursuant to the immediately preceding sentence for application to the reduction
of the outstanding Loans held by the other Lenders. If, as a result of the
repayment of Loans provided for in this Section 4, any payment of Eurodollar
Rate Loans occurs on a day which is not the last day of the applicable Interest
Period, the Borrower will pay to the Administrative Agent for the benefit of any
Lender holding a Eurodollar Rate Loan any loss or cost incurred by such Lender
resulting therefrom in accordance with Section 3.05 to the extent a Eurodollar
Rate Loan is paid on other than the last day of an Interest Period as a result
thereof.
5. ADDITION OF NEW LENDERS. The parties hereto agree that the
provisions of Section 10.07 of the Credit Agreement shall not be applicable to
the addition of the New Lenders pursuant to this First Amendment. Each New
Lender represents and warrants to the Administrative Agent as follows:
(a) such New Lender has received a copy of the Credit Agreement and all
amendments thereto, together with copies of the most recent financial statements
of the Borrower delivered pursuant thereto, and it is an Eligible Assignee;
(b) it has the full power and authority and the legal right to make,
deliver and perform, and has taken all necessary action, to authorize the
execution, delivery and performance of this First Amendment, and any and all
other documents delivered by it in connection herewith and to fulfill its
obligations under, and to consummate the transactions contemplated by, this
First Amendment and the other Loan Documents, and no consent or authorization
of, filing with, or other act by or in respect of any Governmental Authority, is
required in connection herewith or therewith;
(c) under applicable Laws no tax will be required to be withheld by the
Administrative Agent or the Borrower with respect to any payments to be made to
such New Lender under any Loan Document, and no tax forms described in Section
10.15 of the Credit Agreement are required to be delivered by such New Lender;
and
(d) such New Lender has received and reviewed such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this First Amendment and become a party to the Credit
Agreement. Such New Lender has independently and without reliance upon the
Administrative Agent or any other Person, and based on such information as such
New Lender has deemed appropriate, made its own credit analysis and decision to
enter into this First Amendment and become a party to the Credit Agreement. Such
New Lender will, independently and without reliance upon the Administrative
Agent or any other Lender, and based upon such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement.
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6. APPROVAL OF CASHLAND SELLER NOTE. By signing below, each Lender
hereby approves, acknowledges and agrees that the terms of the Cashland Seller
Note are satisfactory to it.
7. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Credit Agreement, as affected and amended
hereby.
(b) The Credit Agreement, as amended by the amendments referred to
above, shall remain in full force and effect and is hereby ratified and
confirmed.
8. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this First Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto).
9. GUARANTOR'S ACKNOWLEDGMENT. By signing below, each Guarantor (a)
acknowledges, consents and agrees to the execution, delivery and performance by
the Borrower of this First Amendment, (b) acknowledges and agrees that its
obligations in respect of its Guaranty (i) are not released, diminished, waived,
modified, impaired or affected in any manner by this First Amendment or any of
the provisions contemplated herein, (c) ratifies and confirms its obligations
under its Guaranty, and (d) acknowledges and agrees that it has no claims or
offsets against, or defenses or counterclaims to, its Guaranty.
10. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which when taken together shall constitute but one and
the same instrument. For purposes of this First Amendment, a counterpart hereof
(or signature page thereto) signed and transmitted by any Person party hereto to
the Administrative Agent (or its counsel) by facsimile machine, telecopier or
electronic mail is to be treated as an original. The signature of such Person
thereon, for purposes hereof, is to be considered as an original signature, and
the counterpart (or signature page thereto) so transmitted is to be considered
to have the same binding effect as an original signature on an original
document.
11. GOVERNING LAW; BINDING EFFECT. This First Amendment shall be
governed by and construed in accordance with the laws of the State of Texas
applicable to agreements made and to be performed entirely within such state,
provided that each party shall retain all rights arising under federal law, and
shall be binding upon the parties hereto and their respective successors and
assigns.
12. HEADINGS. Section headings in this First Amendment are included
herein for convenience of reference only and shall not constitute a part of this
First Amendment for any other purpose.
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13. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FIRST
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, this First Amendment is executed as of the date
first set forth above.
CASH AMERICA INTERNATIONAL, INC.
By: /s/ David J. Clay
---------------------------------------
David J. Clay
-----------------------------------
Vice President - Treasurer
------------------------------------
WELLS FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as Administrative Agent
By: /s/ Stephen C. Melton
---------------------------------------
Name: Stephen C. Melton
------------------------------
Title: Vice President
------------------------------
WELLS FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as a Lender, L/C Issuer
and Swing Line Lender
By: /s/ Stephen C. Melton
---------------------------------------
Name: Stephen C. Melton
------------------------------
Title: Vice President
------------------------------
BANK ONE, N.A., as a Lender and Documentation
Agent
By: /s/ Greg Crowe
---------------------------------------
Name: Greg Crowe
------------------------------
Title: Vice President
------------------------------
JPMORGAN CHASE BANK, as a Lender
By: /s/ David L. Howard
---------------------------------------
Name: David L. Howard
------------------------------
Title: Vice President
------------------------------
US BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Joseph L. Sooter, Jr.
---------------------------------------
Name: Joseph L. Sooter, Jr.
------------------------------
Title: Vice President
------------------------------
THE HUNTINGTON NATIONAL BANK, as a
Lender
By: /s/ Cheryl L. Razon
---------------------------------------
Name: Cheryl L. Razon
------------------------------
Title: Assistant Vice President
------------------------------
TEXAS CAPITAL BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Barry B. Kromann
---------------------------------------
Name: Barry B. Kromann
------------------------------
Title: Senior Vice President
------------------------------
ACKNOWLEDGED AND AGREED TO:
CASH AMERICA HOLDING, INC.
CASH AMERICA PAWN L.P. by its general
partner, Cash America
Holding, Inc.
CASH AMERICA MANAGEMENT L.P. by its
general partner, Cash America Holding, Inc.
MR. PAYROLL CORPORATION
CASH AMERICA, INC. OF TENNESSEE
CASH AMERICA, INC. OF OKLAHOMA
CASH AMERICA, INC. OF KENTUCKY
CASH AMERICA, INC. OF SOUTH CAROLINA
FLORIDA CASH AMERICA, INC.
GEORGIA CASH AMERICA, INC.
CASH AMERICA, INC. OF NORTH CAROLINA
CASH AMERICA PAWN, INC. OF OHIO
CASH AMERICA, INC. OF COLORADO
CASH AMERICA, INC. OF ALABAMA
CASH AMERICA, INC. OF INDIANA
CASH AMERICA OF MISSOURI, INC.
VINCENT'S JEWELERS AND LOAN, INC.
CASH AMERICA, INC. OF UTAH
CASH AMERICA, INC. OF ILLINOIS
UPTOWN CITY PAWNERS, INC.
EXPRESS CASH INTERNATIONAL CORPORATION
EXPRESS CASH FRANCHISING SYSTEMS, INC.
CASH AMERICA, INC.
CASH AMERICA, INC. OF LOUISIANA
CASH AMERICA FRANCHISING, INC.
CASH AMERICA FINANCIAL SERVICES, INC.
DOC HOLLIDAY'S PAWNBROKERS & JEWELLERS, INC.
LONGHORN PAWN & GUN, INC.
BRONCO PAWN & GUN, INC.
GAMECOCK PAWN & GUN, INC.
HORNET PAWN & GUN, INC.
TIGER PAWN & GUN, INC.
RATI HOLDING, INC.
CASHLAND FINANCIAL SERVICES, INC.
By: /s/ David Clay
---------------------------------------
David Clay
Vice President and Treasurer