EXHIBIT 10.1
CASH AMERICA INTERNATIONAL, INC.
AMENDMENT NO. 1 TO NOTE AGREEMENT
As of September 7, 2004
To the Persons Named on
Annex 1 Hereto
Ladies and Gentlemen:
Cash America International, Inc., a Texas corporation (hereinafter, the
"COMPANY"), together with its successors and assigns, agrees with you as
follows:
1. PRELIMINARY STATEMENTS.
1.1. NOTE ISSUANCE, ETC.
The Company issued and sold $42,500,000 in aggregate principal amount of
its 7.20% Senior Notes due August 12, 2009 (as they may be amended, restated or
otherwise modified from time to time, the "SENIOR NOTES") pursuant to that
certain Note Agreement, dated as of August 12, 2002 (as in effect immediately
prior to giving effect to the Amendments (as defined below) provided for hereby,
the "EXISTING NOTE AGREEMENT", and as amended hereby, the "NOTE AGREEMENT"). The
register for the registration and transfer of the Senior Notes indicates that
the parties named in Annex 1 (the "CURRENT HOLDERS") to this Amendment No. 1 to
Note Agreement (this "AMENDMENT AGREEMENT") are currently the holders of the
entire outstanding principal amount of the Senior Notes.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Note Agreement.
3. AMENDMENTS TO THE EXISTING NOTE AGREEMENT.
Subject to Section 5, the Existing Note Agreement is amended as provided
for by this Amendment Agreement as follows:
3.1. SECTION 2.01; DEFINITIONS. Section 2.01 of the Existing Note
Agreement shall be and is hereby amended by inserting into such Section, in its
proper alphabetical order, the following definition:
"FOREIGN ENTITY SALES" means the sale by the Company or any Subsidiary of
substantially all of the capital stock of each of (i) Harvey & Thompson Limited,
a limited liability company organized under the laws of the United Kingdom, and
(ii) CAII Pantbelaning, AB, a joint stock company organized under the laws of
Sweden."
3.2. SECTION 2.01; DEFINITION OF CONSOLIDATED TANGIBLE NET WORTH. The
definition of "CONSOLIDATED TANGIBLE NET WORTH" set forth in Section 2.01 of the
Existing Note Agreement shall be and is hereby amended by adding, at the end
thereof, the following:
"For the avoidance of doubt, Consolidated Tangible Net Worth shall be
calculated giving effect to all past and future gains and losses of
Subsidiaries and other entities which are not Consolidated Subsidiaries,
in each case as provided by GAAP."
3.3. SECTION 5.07; ASSET SALE OFFER OF PREPAYMENT. Section 5 of the
Existing Note Agreement is hereby amended by inserting a new Section 5.07 at the
end thereof to read in its entirety as follows:
"5.07 ASSET SALE OFFER OF PREPAYMENT.
(a) Notice and Offer. In the event that the Company makes an offer (the
"Prepayment Offer") to prepay the Notes pursuant to Section 8.16 hereof,
the Company will give written notice of such offer to each holder of Notes
by telecopy and, simultaneously with the sending of such telecopied
notice, send a copy of such notice to each such holder via an overnight
courier of international reputation. Such written notice shall contain,
and such written notice shall constitute, an irrevocable offer to prepay,
at the election of each holder, a portion of the Notes held by such holder
equal to such holder's Ratable Portion (defined in Section 8.16) on a date
specified in such notice (the "Transfer Prepayment Date") that is not less
than thirty (30) days and not more than forty-five (45) days after the
date of such notice. If the Transfer Prepayment Date shall not be
specified in such notice, the Transfer Prepayment Date shall be the
thirtieth (30th) day after the date of such notice. If the Company shall
not have received a written response to such notice from a holder of Notes
within ten (10) days after the delivery of such telecopied notice to such
holder of Notes, then the Company shall immediately send a second written
notice via an overnight courier of international reputation to each such
holder of Notes who shall not have previously responded to the Company.
(b) Acceptance and Payment. To accept such Prepayment Offer, a holder of
Notes shall cause a notice of such acceptance to be delivered to the
Company not later than twenty (20) days after the date of such first
written notice (or not later than ten (10) days in the case of such second
written notice) from the Company, provided, that failure to respond to
such offer in writing within ten (10) days after the delivery of the
second written notice shall be deemed to be acceptance of the Prepayment
Offer. If so accepted, such offered prepayment equal to not less than such
holder's Ratable Portion shall be due and payable on the Transfer
Prepayment Date. Such offered prepayment shall be made at one hundred
percent (100%) of the principal amount of such Notes being so prepaid,
together with interest and Make-Whole Amount on such principal amount then
being prepaid accrued to and calculated as of the Transfer Prepayment
Date. Two (2) Business Days prior to the making of any such prepayment,
the Company shall deliver to each accepting holder of Notes by facsimile
transmission a certificate of a senior financial officer of the Company,
specifying the details of the calculation of such Ratable Portion and
applicable Make Whole Amount as of such Transfer Prepayment Date.
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(c) Officer's Certificate. Each offer to prepay the Notes pursuant to this
Section 5.07 shall be accompanied by a certificate, executed by a senior
financial officer of the Company and dated the date of such offer,
specifying:
(i) the Transfer Prepayment Date and the applicable Ratable Portion
for each holder of Notes;
(ii) that such offer is being made pursuant to Section 5.07 and
Section 8.16 of this Agreement;
(iv) the principal amount of each Note offered to be prepaid;
(v) the interest that would be due on each such Note offered to be
prepaid, accrued to the date fixed for payment; and
(vi) a calculation of the applicable Make Whole Amount as of the
date of such notice (assuming the Notes were being prepaid on such date)
(d) Effect of Prepayment. Each prepayment in respect of the Notes pursuant
to this Section 5.07 shall be applied to reduce ratably all remaining
payments then due on the Notes as provided in Section 5.01.
(e) Notice Concerning Status of Holders of Notes. Promptly after each
Transfer Prepayment Date and the making of all prepayments contemplated on
such Transfer Prepayment Date under this Section 5.07 (and, in any event,
within thirty (30) days thereafter), the Company shall deliver to each
holder of Notes a certificate signed by a senior financial officer of the
Company containing a list of the then current holders of Notes (together
with their addresses) and setting forth as to each such holder the
outstanding principal amount of Notes held by such holder at such time."
3.4. SECTION 8; AFFIRMATIVE COVENANTS. Section 8 of the Existing Note
Agreement is hereby amended by inserting a new Section 8.16 at the end thereof
to read in its entirety as follows:
"8.16 ACQUISITION/PREPAYMENT.
On or before November 1, 2005 the Company shall have either:
(a) Acquired all of the capital stock of each of CAMCO, Inc., a
Nevada corporation and Superpawn, Inc., a Nevada corporation; or
(b) repaid Indebtedness for Borrowed Money of the Company (other
than Indebtedness for Borrowed Money owing to the Company or any of
its Affiliates and Indebtedness for Borrowed Money in respect of any
revolving credit or similar credit facility providing the Company
with the right to obtain loans or other extensions of credit from
time to time, except to the extent that in connection with such
payment of Indebtedness for Borrowed Money the availability of
credit under such credit facility is permanently reduced by an
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amount not less than the amount of the funds applied to the payment
of such Indebtedness for Borrowed Money) which by its terms is not
subordinated in right of payment to the Notes ("Payment
Indebtedness"); provided that in that course of making such
repayment the Company shall offer to prepay each outstanding Note in
accordance with Section 5.07 in a principal amount which, when added
to the Make-Whole Amount applicable thereto, equals the Ratable
Portion for such Note. If any holder of a Note fails to accept such
prepayment, then, for purposes of the preceding sentence only, the
Company nevertheless will be deemed to have paid Payment
Indebtedness in an amount equal to the Ratable Portion in respect of
such Note. As used herein the term "Ratable Portion" in respect of a
holder of Notes means the product of (x) the Remaining Proceeds
Amount multiplied by (y) a fraction the numerator of which is the
outstanding principal amount of Notes held by such holder and the
denominator of which is the aggregate principal amount of Payment
Indebtedness then outstanding (including Payment Indebtedness
evidenced by the Notes) that will receive or be offered any portion
of such repayment (calculated immediately prior to such repayment
and offer). As used herein the term "Remaining Proceeds Amount"
shall be an amount equal to the greater of (1) zero (0) and (2) the
result of (A) $80,000,000 minus (B) the aggregate cash consideration
paid by the Company to acquire one or more operating businesses
engaged in the same line of business as the Company during the
period beginning September 1, 2004 and ending November 1, 2005."
3.5. SECTION 9.02; CONSOLIDATED TANGIBLE NET WORTH. Section 9.02 of the
Existing Note Agreement shall be and is hereby amended and replaced in its
entirety to read as follows:
"9.02 CONSOLIDATED TANGIBLE NET WORTH.
(a) If, on or before November 1, 2005, the Company has acquired all
the capital stock of each of CAMCO, Inc., a Nevada corporation and
Superpawn, Inc., a Nevada corporation, then the Company will not
permit Consolidated Tangible Net Worth at any time to be less than
the sum of (i) $66,676,000 plus (ii) 50% of Consolidated Adjusted
Net Income (but only if positive) for each Fiscal Quarter ending on
or after August 12, 2002.
(b) If, on or before November 1, 2005, the Company has not (i)
acquired all the capital stock of each of CAMCO, Inc., a Nevada
corporation and Superpawn, Inc., a Nevada corporation or (ii)
completed at least $80,000,000 of replacement acquisitions, then the
Company will not permit Consolidated Tangible Net Worth at any time
to be less than the sum of (i) $93,000,000 plus (ii) 50% of
Consolidated Adjusted Net Income (but only if positive) for each
Fiscal Quarter ending on or after the Closing Date."
3.6. SECTION 9.14; LIMITATION ON SALE OR ISSUANCE OF SUBSIDIARY STOCK.
Each of Sections 9.14(a) and 9.14(b) of the Existing Note Agreement shall be and
is hereby amended by adding at the end of each such Section the following:
"Notwithstanding the foregoing, the Company or any Subsidiary may at any time
prior to November 1, 2004 complete any one or
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more Foreign Entity Sales so long as no Default or Event of Default exists at
the time of such Foreign Entity Sale."
3.7. SECTION 9.15; LIMITATION ON SALE OF PROPERTIES. Section 9.15 of the
Existing Note Agreement shall be and is hereby amended by inserting the
following sentence at the end of such Section, to read in its entirety as
follows:
"Notwithstanding the foregoing, the Company or any Subsidiary may at any
time prior to November 1, 2004 complete any one or more Foreign Entity
Sales, so long as no Default or Event of Default exists at the time of
such Foreign Entity Sale."
Such amendments are referred to herein, collectively, as the "AMENDMENTS."
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce you to enter into this Amendment Agreement and to consent to the
Amendments, the Company represents and warrants to you as follows:
4.1. FULL DISCLOSURE.
Neither the financial statements and other certificates previously
provided to each of the Current Holders pursuant to the provisions of the
Existing Note Agreement nor the statements made in this Amendment Agreement nor
any other written statements furnished to each of the Current Holders by or on
behalf of the Company in connection with the proposal and negotiation of the
transactions contemplated hereby, taken as a whole, contained any untrue
statement of a material fact or omitted a material fact necessary to make the
statements contained therein and herein not misleading, in each case as of the
time such financial statements or certificates were provided or such statements
were made or furnished. There is no fact known to the Company relating to any
event or circumstance that has occurred or arisen since the Closing Date that
the Company has not disclosed to each of the Current Holders in writing that has
had or, so far as the Company can now reasonably foresee, could reasonably be
expected to have, a Material Adverse Effect.
4.2. POWER AND AUTHORITY.
The Company has all requisite corporate power and authority to enter into
and perform its obligations under this Amendment Agreement.
4.3. DUE AUTHORIZATION.
This Amendment Agreement has been duly authorized by all necessary action
on the part of the Company, has been executed and delivered by a duly authorized
officer of the Company, and constitutes a legal, valid and binding obligation of
the Company, enforceable in accordance with its terms, except that
enforceability may be limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting the
enforceability of creditors' rights generally and subject to the availability of
equitable remedies.
4.4. NO DEFAULTS.
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No event has occurred and no condition exists that, upon the execution and
delivery of this Amendment Agreement, would constitute a Default or an Event of
Default.
5. EFFECTIVENESS OF AMENDMENTS.
The Amendments shall become effective as of the first date written above
(the "EFFECTIVE DATE") upon the satisfaction of all of the following conditions
precedent:
5.1. EXECUTION AND DELIVERY OF THIS AMENDMENT AGREEMENT.
The Company and each of the Current Holders shall have executed and
delivered this Amendment Agreement.
5.2. NEW BANK LOAN AGREEMENT CONSENT.
Each of the Current Holders shall have received an executed amendment by
and among the Company, Wells Fargo Bank Texas, National Association and the
other Lenders party to the New Bank Loan Agreement, permitting the Company's
sale of each of (i) Harvey & Thompson Limited, a limited liability company
organized under the laws of the United Kingdom, and (ii) Svensk Pantbelaning
Service, AB, a joint stock company organized under the laws of Sweden, and
waiving the Company's compliance with various sections of the New Bank Loan
Agreement with respect to such sale.
5.3. GUARANTORS.
Each Guarantor which delivered a Joint and Several Guaranty shall have
executed and delivered to you the Consent and Reaffirmation attached hereto as
Exhibit A.
5.4. AMENDMENT FEE.
The Company shall have paid each holder of a Note a fee in an amount equal
to the product of (a) 0.10 percent (10 basis points) times (b) the outstanding
principal amount of Notes held by such holder on the date hereof.
5.5. FEES AND EXPENSES.
Whether or not the Amendments become effective, the Company will promptly
(and in any event within thirty Business Days of receiving any statement or
invoice therefor) pay all reasonable fees, expenses and costs relating to this
Amendment Agreement, including, but not limited to, the reasonable fees of your
special counsel, Bingham McCutchen LLP, incurred in connection with the
preparation, negotiation and delivery of this Amendment Agreement and any other
documents related thereto. Nothing in this Section shall limit the Company's
obligations pursuant to Section 11.02 of the Note Agreement.
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6. MISCELLANEOUS.
6.1. PART OF EXISTING NOTE AGREEMENT; FUTURE REFERENCES, ETC.
This Amendment Agreement shall be construed in connection with and as a
part of the Existing Note Agreement and, except as expressly amended by this
Amendment Agreement, all terms, conditions and covenants contained in the
Existing Note Agreement are hereby ratified and shall be and remain in full
force and effect. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Amendment Agreement may refer to the Existing Note Agreement without making
specific reference to this Amendment Agreement, but nevertheless all such
references shall include this Amendment Agreement unless the context otherwise
requires.
6.2. COUNTERPARTS.
This Amendment Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
6.3. GOVERNING LAW.
THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE
OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; NEXT PAGE IS SIGNATURE PAGE.]
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If you are in agreement with the foregoing, please so indicate by signing
the acceptance below on the accompanying counterpart of this agreement and
returning it to the Company, whereupon it will become a binding agreement among
you and the Company.
CASH AMERICA INTERNATIONAL, INC.
By: /s/ David J. Clay
---------------------------------
Name: David J. Clay
Title: Vice President and Treasurer
The foregoing Amendment Agreement is hereby accepted as of the date first
above written. By its execution below, each of the undersigned represents that
it is either the registered owner of one or more of the Senior Notes or is the
beneficial owner of one or more of the Senior Notes and is authorized to enter
into this Agreement in respect thereof.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Estelle Simsolo
---------------------------------
Name: Estelle Simsolo
Title: Director-Private Placements
MINNESOTA LIFE INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
---------------------------------
Name: Robert W. Thompson
Title: Vice President
FARM BUREAU LIFE INSURANCE COMPANY
OF MICHIGAN
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
---------------------------------
Name: Robert W. Thompson
Title: Vice President
[Signature Page to Amendment No. 1 to Note Agreement]
MTL INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
---------------------------------
Name: Robert W. Thompson
Title: Vice President
AMERICAN FIDELITY ASSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
---------------------------------
Name: Robert W. Thompson
Title: Vice President
GREAT WESTERN INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ Robert W. Thompson
---------------------------------
Name: Robert W. Thompson
Title: Vice President
[Signature Page to Amendment No. 1 to Note Agreement]
FARM BUREAU MUTUAL INSURANCE COMPANY
OF MICHIGAN
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ James W. Tobin
---------------------------------
Name: James W. Tobin
Title: Vice President
FARM BUREAU GENERAL INSURANCE COMPANY
OF MICHIGAN
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ James W. Tobin
---------------------------------
Name: James W. Tobin
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Denise T. Duffee
---------------------------------
Name: Denise T. Duffee
Title: Investment Officer
[Signature Page to Amendment No. 1 to Note Agreement]
ANNEX 1
CURRENT HOLDERS
Teachers Insurance and Annuity Association of America
Minnesota Life Insurance Company
Farm Bureau Life Insurance Company of Michigan
MTL Insurance Company
American Fidelity Assurance Company
Great Western Insurance Company
Farm Bureau Mutual Insurance Company of Michigan
Farm Bureau General Insurance Company of Michigan
The Travelers Insurance Company
EXHIBIT A
CONSENT AND REAFFIRMATION
Each of the undersigned (the "GUARANTORS") hereby (i) acknowledges receipt
of a copy of the foregoing Amendment No. 1 to Note Agreement (the "FIRST
AMENDMENT"); (ii) consents to the Company's execution and delivery thereof;
(iii) agrees to be bound thereby; and (iv) affirms that nothing contained
therein shall modify in any respect whatsoever its guaranty of the obligations
of the Company to the holders of the Notes pursuant to the terms of those
certain Joint and Several Guaranties, entered into by the Guarantors pursuant to
the terms of the Note Agreement (collectively, the "GUARANTY"), and (v)
reaffirms that the Guaranty is and shall continue to remain in full force and
effect. Although each of the Guarantors has been informed of the matters set
forth herein and in the First Amendment and has acknowledged and agreed to same,
such Guarantors understand that the holders of the Notes have no obligation to
inform any of the Guarantors of such matters in the future or to seek any of the
Guarantors' acknowledgment or agreement to future amendments or waivers, and
nothing herein shall create such a duty.
In witness whereof, each of the undersigned has executed this Consent and
Reaffirmation on and as of the date of such First Amendment.
GUARANTORS
BRONCO PAWN & GUN, INC., AN OKLAHOMA CORPORATION
CASH AMERICA FINANCIAL SERVICES, INC.,
A DELAWARE CORPORATION
CASH AMERICA FRANCHISING, INC.
CASH AMERICA HOLDING, INC.
CASH AMERICA MANAGEMENT L.P.,
A DELAWARE LIMITED PARTNERSHIP, BY ITS GENERAL PARTNER,
CASH AMERICA HOLDING, INC.
CASH AMERICA OF MISSOURI, INC.
CASH AMERICA PAWN L.P., A DELAWARE LIMITED PARTNERSHIP,
BY ITS GENERAL PARTNER, CASH AMERICA HOLDING, INC.
CASH AMERICA PAWN, INC. OF OHIO
CASH AMERICA, INC.
CASH AMERICA, INC. OF ALABAMA
CASH AMERICA, INC. OF COLORADO
CASH AMERICA, INC. OF ILLINOIS, AN ILLINOIS CORPORATION
CASH AMERICA, INC. OF INDIANA
CASH AMERICA, INC. OF KENTUCKY
CASH AMERICA, INC. OF LOUISIANA
CASH AMERICA, INC. OF NORTH CAROLINA
CASH AMERICA, INC. OF OKLAHOMA
CASH AMERICA, INC. OF SOUTH CAROLINA
CASH AMERICA, INC. OF TENNESSEE
CASH AMERICA, INC. OF UTAH
[Signature page to Consent and Reaffirmation re: 2002 Note Agreement]
DOC HOLLIDAY'S PAWNBROKERS & JEWELLERS, INC.,
A DELAWARE CORPORATION
EXPRESS CASH INTERNATIONAL CORPORATION
FLORIDA CASH AMERICA, INC.
GAMECOCK PAWN & GUN, INC., A SOUTH CAROLINA CORPORATION
GEORGIA CASH AMERICA, INC.
HORNET PAWN & GUN, INC., A NORTH CAROLINA CORPORATION
LONGHORN PAWN & GUN, INC., A TEXAS CORPORATION
MR. PAYROLL CORPORATION, A DELAWARE CORPORATION
TIGER PAWN & GUN, INC., A TENNESSEE CORPORATION
UPTOWN CITY PAWNERS, INC., AN ILLINOIS CORPORATION
VINCENT'S JEWELERS AND LOAN, INC.
CASHLAND FINANCIAL SERVICES, INC.
CASH AMERICA ADVANCE, INC.
RATI HOLDING, INC.
By: /s/ David J. Clay
-----------------------------------------------
Name: David J. Clay
Title: Treasurer for All
CASH AMERICA INTERNATIONAL, INC.
By: /s/ David J. Clay
-----------------------------------------------
Name: David J. Clay
Title: Vice President and Treasurer
[Signature page to Consent and Reaffirmation re: 2002 Note Agreement]
CASH AMERICA INTERNATIONAL, INC.
SUPPLEMENT NO. 5 TO NOTE AGREEMENT
As of September 7, 2004
To the Persons Named on
Annex 1 Hereto
Ladies and Gentlemen:
Cash America International, Inc., a Texas corporation (hereinafter, the
"COMPANY"), together with its successors and assigns, agrees with you as
follows:
1. PRELIMINARY STATEMENTS.
1.1. NOTE ISSUANCE, ETC.
The Company issued and sold $30,000,000 in aggregate principal amount of
its 7.10% Senior Notes due January 2, 2008 (as they may be amended, restated or
otherwise modified from time to time, the "SENIOR NOTES") pursuant to that
certain Note Agreement, dated as of December 1, 1997 (as amended by each of (i)
that certain First Supplement to 1997 Note Agreement, dated as of December 31,
1998, (ii) that certain Second Supplement to 1997 Note Agreement, dated as of
September 29, 1999, (iii) that certain Third Supplement to 1997 Note Agreement,
dated as of June 30, 2000, and (iv) that certain Fourth Supplement to 1997 Note
Agreement, dated as of September 30, 2001, and as in effect immediately prior to
giving effect to the Amendments (as defined below) provided for hereby, the
"EXISTING NOTE AGREEMENT", and as amended hereby, the "NOTE AGREEMENT"). The
register for the registration and transfer of the Senior Notes indicates that
the parties named in Annex 1 (the "CURRENT HOLDERS") to this Supplement No. 5 to
Note Agreement (this "AMENDMENT AGREEMENT") are currently the holders of the
entire outstanding principal amount of the Senior Notes.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Note Agreement.
3. AMENDMENTS TO THE EXISTING NOTE AGREEMENT.
Subject to Section 5, the Existing Note Agreement is amended as provided
for by this Amendment Agreement as follows:
3.1. SECTION 2.01; DEFINITIONS. Section 2.01 of the Existing Note
Agreement shall be and is hereby amended by inserting into such Section, in its
proper alphabetical order, the following definition:
"Foreign Entity Sales" means the sale by the Company or any Subsidiary of
substantially all of the capital stock of each of (i) Harvey & Thompson Limited,
a limited liability company
organized under the laws of the United Kingdom, and (ii) CAII Pantbelaning, AB,
a joint stock company organized under the laws of Sweden."
3.2. SECTION 2.01; DEFINITION OF CONSOLIDATED TANGIBLE NET WORTH. The
definition of "Consolidated Tangible Net Worth" set forth in Section 2.01 of the
Existing Note Agreement shall be and is hereby amended by adding, at the end
thereof, the following:
"For the avoidance of doubt, Consolidated Tangible Net Worth shall be
calculated giving effect to all past and future gains and losses of
Subsidiaries and other entities which are not Consolidated Subsidiaries,
in each case as provided by GAAP."
3.3. SECTION 5.07; ASSET SALE OFFER OF PREPAYMENT. Section 5 of the
Existing Note Agreement is hereby amended by inserting a new Section 5.07 at the
end thereof to read in its entirety as follows:
"Section 5.07; Asset Sale Offer of Prepayment.
(a) Notice and Offer. In the event that the Company makes an offer (the
"Prepayment Offer") to prepay the Notes pursuant to Section 8.15 hereof,
the Company will give written notice of such offer to each holder of Notes
by telecopy and, simultaneously with the sending of such telecopied
notice, send a copy of such notice to each such holder via an overnight
courier of international reputation. Such written notice shall contain,
and such written notice shall constitute, an irrevocable offer to prepay,
at the election of each holder, a portion of the Notes held by such holder
equal to such holder's Ratable Portion (defined in Section 8.15) on a date
specified in such notice (the "Transfer Prepayment Date") that is not less
than thirty (30) days and not more than forty-five (45) days after the
date of such notice. If the Transfer Prepayment Date shall not be
specified in such notice, the Transfer Prepayment Date shall be the
thirtieth (30th) day after the date of such notice. If the Company shall
not have received a written response to such notice from a holder of Notes
within ten (10) days after the delivery of such telecopied notice to such
holder of Notes, then the Company shall immediately send a second written
notice via an overnight courier of international reputation to each such
holder of Notes who shall not have previously responded to the Company.
(b) Acceptance and Payment. To accept such Prepayment Offer, a holder of
Notes shall cause a notice of such acceptance to be delivered to the
Company not later than twenty (20) days after the date of such first
written notice (or not later than ten (10) days in the case of such second
written notice) from the Company, provided, that failure to respond to
such offer in writing within ten (10) days after the delivery of the
second written notice shall be deemed to be acceptance of the Prepayment
Offer. If so accepted, such offered prepayment equal to not less than such
holder's Ratable Portion shall be due and payable on the Transfer
Prepayment Date. Such offered prepayment shall be made at one hundred
percent (100%) of the principal amount of such Notes being so prepaid,
together with interest and Make-Whole Amount on such principal amount then
being prepaid accrued to and calculated as of the Transfer Prepayment
Date. Two (2) Business Days prior to the making of any such prepayment,
the Company shall deliver to each accepting holder of Notes by facsimile
transmission a certificate of a senior financial
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officer of the Company, specifying the details of the calculation of such
Ratable Portion and applicable Make Whole Amount as of such Transfer
Prepayment Date.
(c) Officer's Certificate. Each offer to prepay the Notes pursuant to this
Section 5.07 shall be accompanied by a certificate, executed by a senior
financial officer of the Company and dated the date of such offer,
specifying:
(i) the Transfer Prepayment Date and the applicable Ratable Portion
for each holder of Notes;
(ii) that such offer is being made pursuant to Section 5.07 and
Section 8.15 of this Agreement;
(iv) the principal amount of each Note offered to be prepaid;
(v) the interest that would be due on each such Note offered to be
prepaid, accrued to the date fixed for payment; and
(vi) a calculation of the applicable Make Whole Amount as of the
date of such notice (assuming the Notes were being prepaid on such date)
(d) Effect of Prepayment. Each prepayment in respect of the Notes pursuant
to this Section 5.07 shall be applied to reduce ratably all remaining
payments then due on the Notes as provided in Section 5.01.
(e) Notice Concerning Status of Holders of Notes. Promptly after each
Transfer Prepayment Date and the making of all prepayments contemplated on
such Transfer Prepayment Date under this Section 5.07 (and, in any event,
within thirty (30) days thereafter), the Company shall deliver to each
holder of Notes a certificate signed by a senior financial officer of the
Company containing a list of the then current holders of Notes (together
with their addresses) and setting forth as to each such holder the
outstanding principal amount of Notes held by such holder at such time."
3.4. SECTION 8; AFFIRMATIVE COVENANTS. Section 8 of the Existing Note
Agreement is hereby amended by inserting a new Section 8.15 at the end thereof
to read in its entirety as follows:
"Section 8.15 Acquisition/Prepayment.
On or before November 1, 2005 the Company shall have either:
(a) Acquired all of the capital stock of each of CAMCO, Inc., a
Nevada corporation and SuperPawn, Inc., a Nevada corporation; or
(b) repaid Indebtedness for Borrowed Money of the Company (other
than Indebtedness for Borrowed Money owing to the Company or any of
its Affiliates and Indebtedness for Borrowed Money in respect of any
revolving credit or similar credit facility providing the Company
with the right to obtain loans or
3
other extensions of credit from time to time, except to the extent
that in connection with such payment of Indebtedness for Borrowed
Money the availability of credit under such credit facility is
permanently reduced by an amount not less than the amount of the
funds applied to the payment of such Indebtedness for Borrowed
Money) which by its terms is not subordinated in right of payment to
the Notes ("Payment Indebtedness"); provided that in that course of
making such repayment the Company shall offer to prepay each
outstanding Note in accordance with Section 5.07 in a principal
amount which, when added to the Make-Whole Amount applicable
thereto, equals the Ratable Portion for such Note. If any holder of
a Note fails to accept such prepayment, then, for purposes of the
preceding sentence only, the Company nevertheless will be deemed to
have paid Payment Indebtedness in an amount equal to the Ratable
Portion in respect of such Note. As used herein the term "Ratable
Portion" in respect of a holder of Notes means the product of (x)
the Remaining Proceeds Amount multiplied by (y) a fraction the
numerator of which is the outstanding principal amount of Notes held
by such holder and the denominator of which is the aggregate
principal amount of Payment Indebtedness then outstanding (including
Payment Indebtedness evidenced by the Notes) that will receive or be
offered any portion of such repayment (calculated immediately prior
to such repayment and offer). As used herein the term "Remaining
Proceeds Amount" shall be an amount equal to the greater of (1) zero
(0) and (2) the result of (A) $80,000,000 minus (B) the aggregate
cash consideration paid by the Company to acquire one or more
operating businesses engaged in the same line of business as the
Company during the period beginning September 1, 2004 and ending
November 1, 2005."
3.5. SECTION 9.02; CONSOLIDATED TANGIBLE NET WORTH. Section 9.02 of the
Existing Note Agreement shall be and is hereby amended and replaced in its
entirety to read as follows:
"Section 9.02 Consolidated Tangible Net Worth.
(a) If, on or before November 1, 2005, the Company has acquired all
the capital stock of each of CAMCO, Inc., a Nevada corporation and
SuperPawn, Inc., a Nevada corporation, then the Company will not
permit Consolidated Tangible Net Worth at any time to be less than
the sum of (i) $66,676,000 plus (ii) 50% of Consolidated Adjusted
Net Income (but only if positive) for each Fiscal Quarter ending on
or after August 12, 2002.
(b) If, on or before November 1, 2005, the Company has not (i)
acquired all the capital stock of each of CAMCO, Inc., a Nevada
corporation and SuperPawn, Inc., a Nevada corporation or (ii)
completed at least $80,000,000 of replacement acquisitions, then the
Company will not permit Consolidated Tangible Net Worth at any time
to be less than the sum of (i) $30,625,000 plus (ii) 50% of
Consolidated Adjusted Net Income (but only if positive) for each
Fiscal Quarter ending on or after December 31, 1992."
3.6. SECTION 9.14; LIMITATION ON SALE OR ISSUANCE OF SUBSIDIARY STOCK.
Each of Sections 9.14(a) and 9.14(b) of the Existing Note Agreement shall be and
is hereby amended by
4
adding at the end of each such Section the following: "Notwithstanding the
foregoing, the Company or any Subsidiary may at any time prior to November 1,
2004 complete any one or more Foreign Entity Sales so long as no Default or
Event of Default exists at the time of such Foreign Entity Sale."
3.7. SECTION 9.15; LIMITATION ON SALE OF PROPERTIES. Section 9.15 of the
Existing Note Agreement shall be and is hereby amended by inserting the
following sentence at the end of such Section, to read in its entirety as
follows:
"Notwithstanding the foregoing, the Company or any Subsidiary may at any
time prior to November 1, 2004 complete any one or more Foreign Entity
Sales, so long as no Default or Event of Default exists at the time of
such Foreign Entity Sale."
Such amendments are referred to herein, collectively, as the "AMENDMENTS."
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce you to enter into this Amendment Agreement and to consent to the
Amendments, the Company represents and warrants to you as follows:
4.1. FULL DISCLOSURE.
Neither the financial statements and other certificates previously
provided to each of the Current Holders pursuant to the provisions of the
Existing Note Agreement nor the statements made in this Amendment Agreement nor
any other written statements furnished to each of the Current Holders by or on
behalf of the Company in connection with the proposal and negotiation of the
transactions contemplated hereby, taken as a whole, contained any untrue
statement of a material fact or omitted a material fact necessary to make the
statements contained therein and herein not misleading, in each case as of the
time such financial statements or certificates were provided or such statements
were made or furnished. There is no fact known to the Company relating to any
event or circumstance that has occurred or arisen since the Closing Date that
the Company has not disclosed to each of the Current Holders in writing that has
had or, so far as the Company can now reasonably foresee, could reasonably be
expected to have, a Material Adverse Effect.
4.2. POWER AND AUTHORITY.
The Company has all requisite corporate power and authority to enter into
and perform its obligations under this Amendment Agreement.
4.3. DUE AUTHORIZATION.
This Amendment Agreement has been duly authorized by all necessary action
on the part of the Company, has been executed and delivered by a duly authorized
officer of the Company, and constitutes a legal, valid and binding obligation of
the Company, enforceable in accordance with its terms, except that
enforceability may be limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting the
enforceability of creditors' rights generally and subject to the availability of
equitable remedies.
5
4.4. NO DEFAULTS.
No event has occurred and no condition exists that, upon the execution and
delivery of this Amendment Agreement, would constitute a Default or an Event of
Default.
5. EFFECTIVENESS OF AMENDMENTS.
The Amendments shall become effective as of the first date written above
(the "EFFECTIVE DATE") upon the satisfaction of all of the following conditions
precedent:
5.1. EXECUTION AND DELIVERY OF THIS AMENDMENT AGREEMENT.
The Company and each of the Current Holders shall have executed and
delivered this Amendment Agreement.
5.2. NEW BANK LOAN AGREEMENT CONSENT.
Each of the Current Holders shall have received an executed amendment by
and among the Company, Wells Fargo Bank Texas, National Association and the
other Lenders party to that certain Credit Agreement, dated as of August 14,
2002 (the "NEW BANK LOAN AGREEMENT"), permitting the Company's sale of each of
(i) Harvey & Thompson Limited, a limited liability company organized under the
laws of the United Kingdom, and (ii) Svensk Pantbelaning Service, AB, a joint
stock company organized under the laws of Sweden, and waiving the Company's
compliance with various sections of the New Bank Loan Agreement with respect to
such sale.
5.3. GUARANTORS.
Each Guarantor which delivered a Joint and Several Guaranty shall have
executed and delivered to you the Consent and Reaffirmation attached hereto as
Exhibit A.
5.4. AMENDMENT FEE.
The Company shall have paid each holder of a Note a fee in an amount equal
to the product of (a) 0.10 percent (10 basis points) times (b) the outstanding
principal amount of Notes held by such holder on the date hereof.
5.5. FEES AND EXPENSES.
Whether or not the Amendments become effective, the Company will promptly
(and in any event within thirty Business Days of receiving any statement or
invoice therefor) pay all reasonable fees, expenses and costs relating to this
Amendment Agreement, including, but not limited to, the reasonable fees of your
special counsel, Bingham McCutchen LLP, incurred in connection with the
preparation, negotiation and delivery of this Amendment Agreement and any other
documents related thereto. Nothing in this Section shall limit the Company's
obligations pursuant to Section 11.02 of the Note Agreement.
6
6. MISCELLANEOUS.
6.1. PART OF EXISTING NOTE AGREEMENT; FUTURE REFERENCES, ETC.
This Amendment Agreement shall be construed in connection with and as a
part of the Existing Note Agreement and, except as expressly amended by this
Amendment Agreement, all terms, conditions and covenants contained in the
Existing Note Agreement are hereby ratified and shall be and remain in full
force and effect. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Amendment Agreement may refer to the Existing Note Agreement without making
specific reference to this Amendment Agreement, but nevertheless all such
references shall include this Amendment Agreement unless the context otherwise
requires.
6.2. COUNTERPARTS.
This Amendment Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
6.3. GOVERNING LAW.
THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE
OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; NEXT PAGE IS SIGNATURE PAGE.]
7
If you are in agreement with the foregoing, please so indicate by signing
the acceptance below on the accompanying counterpart of this agreement and
returning it to the Company, whereupon it will become a binding agreement among
you and the Company.
CASH AMERICA INTERNATIONAL, INC.
By: /s/ David J. Clay
---------------------------------
Name: David J. Clay
Title: Vice President and Treasurer
The foregoing Amendment Agreement is hereby accepted as of the date first
above written. By its execution below, each of the undersigned represents that
it is either the registered owner of one or more of the Senior Notes or is the
beneficial owner of one or more of the Senior Notes and is authorized to enter
into this Agreement in respect thereof.
THE TRAVELERS INSURANCE COMPANY
By: /s/ Denise T. Duffee
------------------------------------
Name: Denise T. Duffee
Title: Investment Officer
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ Denise T. Duffee
------------------------------------
Name: Denise T. Duffee
Title: Investment Officer
PRIMERICA LIFE INSURANCE COMPANY
By: /s/ Denise T. Duffee
------------------------------------
Name: Denise T. Duffee
Title: Investment Officer
[Signature Page to Supplement No. 5 to Note Agreement]
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Joseph P. Young
------------------------------------
Name: Joseph P. Young
Title: Authorized Signatory
NATIONWIDE LIFE INSURANCE COMPANY
(AS SUCCESSOR TO EMPLOYERS LIFE INSURANCE COMPANY
OF WAUSAU)
By: /s/ Joseph P. Young
------------------------------------
Name: Joseph P. Young
Title: Authorized Signatory
OHIO NATIONAL LIFE ASSURANCE CORPORATION
By: /s/ Michael Boedeker
------------------------------------
Name: Michael Boedeker
Title: Sr. Vice President, Investments
MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Sean M. O'Connell
------------------------------------
Name: Sean M. O'Connell
Title: Vice President
[Signature Page to Supplement No. 5 to Note Agreement]
ANNEX 1
CURRENT HOLDERS
The Travelers Insurance Company
The Travelers Life and Annuity Company
Primerica Life Insurance Company
Nationwide Life Insurance Company
Employers Life Insurance Company of Wausau
Ohio National Life Assurance Corporation
The Minnesota Mutual Life Insurance Company
EXHIBIT A
CONSENT AND REAFFIRMATION
Each of the undersigned (the "GUARANTORS") hereby (i) acknowledges receipt
of a copy of the foregoing Supplement No. 5 to Note Agreement (the "FIFTH
AMENDMENT"); (ii) consents to the Company's execution and delivery thereof;
(iii) agrees to be bound thereby; and (iv) affirms that nothing contained
therein shall modify in any respect whatsoever its guaranty of the obligations
of the Company to the holders of the Notes pursuant to the terms of those
certain Joint and Several Guaranties, entered into by the Guarantors pursuant to
the terms of the Note Agreement (collectively, the "GUARANTY"), and (v)
reaffirms that the Guaranty is and shall continue to remain in full force and
effect. Although each of the Guarantors has been informed of the matters set
forth herein and in the Fifth Amendment and has acknowledged and agreed to same,
such Guarantors understand that the holders of the Notes have no obligation to
inform any of the Guarantors of such matters in the future or to seek any of the
Guarantors' acknowledgment or agreement to future amendments or waivers, and
nothing herein shall create such a duty.
In witness whereof, each of the undersigned has executed this Consent and
Reaffirmation on and as of the date of such Fifth Amendment.
GUARANTORS
BRONCO PAWN & GUN, INC., AN OKLAHOMA CORPORATION
CASH AMERICA FINANCIAL SERVICES, INC.,
A DELAWARE CORPORATION
CASH AMERICA FRANCHISING, INC.
CASH AMERICA HOLDING, INC.
CASH AMERICA MANAGEMENT L.P.,
A DELAWARE LIMITED PARTNERSHIP, BY ITS GENERAL PARTNER,
CASH AMERICA HOLDING, INC.
CASH AMERICA OF MISSOURI, INC.
CASH AMERICA PAWN L.P., A DELAWARE LIMITED PARTNERSHIP,
BY ITS GENERAL PARTNER, CASH AMERICA HOLDING, INC.
CASH AMERICA PAWN, INC. OF OHIO
CASH AMERICA, INC.
CASH AMERICA, INC. OF ALABAMA
CASH AMERICA, INC. OF COLORADO
CASH AMERICA, INC. OF ILLINOIS, AN ILLINOIS CORPORATION
CASH AMERICA, INC. OF INDIANA
CASH AMERICA, INC. OF KENTUCKY
CASH AMERICA, INC. OF LOUISIANA
CASH AMERICA, INC. OF NORTH CAROLINA
CASH AMERICA, INC. OF OKLAHOMA
CASH AMERICA, INC. OF SOUTH CAROLINA
CASH AMERICA, INC. OF TENNESSEE
CASH AMERICA, INC. OF UTAH
DOC HOLLIDAY'S PAWNBROKERS & JEWELLERS, INC.,
A DELAWARE CORPORATION
EXPRESS CASH INTERNATIONAL CORPORATION
FLORIDA CASH AMERICA, INC.
GAMECOCK PAWN & GUN, INC., A SOUTH CAROLINA CORPORATION
GEORGIA CASH AMERICA, INC.
HORNET PAWN & GUN, INC., A NORTH CAROLINA CORPORATION
LONGHORN PAWN & GUN, INC., A TEXAS CORPORATION
MR. PAYROLL CORPORATION, A DELAWARE CORPORATION
TIGER PAWN & GUN, INC., A TENNESSEE CORPORATION
UPTOWN CITY PAWNERS, INC., AN ILLINOIS CORPORATION
VINCENT'S JEWELERS AND LOAN, INC.
CASHLAND FINANCIAL SERVICES, INC.
CASH AMERICA ADVANCE, INC.
RATI HOLDING, INC.
By: /s/ David J. Clay
---------------------------------------
Name: David J. Clay
Title: Treasurer for All
CASH AMERICA INTERNATIONAL, INC.
By: /s/ David J. Clay
---------------------------------------
Name: David J. Clay
Title: Vice President and Treasurer
CASH AMERICA INTERNATIONAL, INC.
SUPPLEMENT NO. 8 TO NOTE AGREEMENT
As of September 7, 2004
To the Persons Named on
Annex 1 Hereto
Ladies and Gentlemen:
Cash America International, Inc., a Texas corporation (hereinafter, the
"COMPANY"), together with its successors and assigns, agrees with you as
follows:
1. PRELIMINARY STATEMENTS.
1.1. NOTE ISSUANCE, ETC.
The Company issued and sold $20,000,000 in aggregate principal amount of
its 8.14% Senior Notes due July 7, 2007 (as they may be amended, restated or
otherwise modified from time to time, the "SENIOR NOTES") pursuant to that
certain Note Agreement, dated as of July 7, 1995 (as amended by each of (i) that
certain First Supplement to 1995 Note Agreement, dated as of November 10, 1995,
(ii) that certain Second Supplement to 1995 Note Agreement, dated as of December
30, 1996, (iii) that certain Third Supplement to 1995 Note Agreement, dated as
of December 30, 1997, (iv) that certain Fourth Supplement to 1995 Note
Agreement, dated as of December 31, 1998, (v) that certain Fifth Supplement to
1995 Note Agreement, dated as of September 29, 1999, (vi) that certain Sixth
Supplement to 1995 Note Agreement, dated as of June 30, 2000, and (vii) that
certain Seventh Supplement to 1995 Note Agreement, dated as of September 30,
2001, and as in effect immediately prior to giving effect to the Amendments (as
defined below) provided for hereby, the "EXISTING NOTE AGREEMENT", and as
amended hereby, the "NOTE AGREEMENT"). The register for the registration and
transfer of the Senior Notes indicates that the parties named in Annex 1 (the
"CURRENT HOLDERS") to this Supplement No. 8 to Note Agreement (this "AMENDMENT
AGREEMENT") are currently the holders of the entire outstanding principal amount
of the Senior Notes.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Note Agreement.
3. AMENDMENTS TO THE EXISTING NOTE AGREEMENT.
Subject to Section 5, the Existing Note Agreement is amended as provided
for by this Amendment Agreement as follows:
3.1. SECTION 2.01; DEFINITIONS. Section 2.01 of the Existing Note
Agreement shall be and is hereby amended by inserting into such Section, in its
proper alphabetical order, the following definition:
"Foreign Entity Sales" means the sale by the Company or any Subsidiary of
substantially all of the capital stock of each of (i) Harvey & Thompson Limited,
a limited liability company organized under the laws of the United Kingdom, and
(ii) CAII Pantbelaning, AB, a joint stock company organized under the laws of
Sweden."
3.2. SECTION 2.01; DEFINITION OF CONSOLIDATED TANGIBLE NET WORTH. The
definition of "Consolidated Tangible Net Worth" set forth in Section 2.01 of the
Existing Note Agreement shall be and is hereby amended by adding, at the end
thereof, the following:
"For the avoidance of doubt, Consolidated Tangible Net Worth shall be
calculated giving effect to all past and future gains and losses of
Subsidiaries and other entities which are not Consolidated Subsidiaries,
in each case as provided by GAAP."
3.3. SECTION 5.07; ASSET SALE OFFER OF PREPAYMENT. Section 5 of the
Existing Note Agreement is hereby amended by inserting a new Section 5.07 at the
end thereof to read in its entirety as follows:
"SECTION 5.07. Asset Sale Offer of Prepayment.
(a) Notice and Offer. In the event that the Company makes an offer (the
"Prepayment Offer") to prepay the Notes pursuant to Section 8.15 hereof,
the Company will give written notice of such offer to each holder of Notes
by telecopy and, simultaneously with the sending of such telecopied
notice, send a copy of such notice to each such holder via an overnight
courier of international reputation. Such written notice shall contain,
and such written notice shall constitute, an irrevocable offer to prepay,
at the election of each holder, a portion of the Notes held by such holder
equal to such holder's Ratable Portion (defined in Section 8.15) on a date
specified in such notice (the "Transfer Prepayment Date") that is not less
than thirty (30) days and not more than forty-five (45) days after the
date of such notice. If the Transfer Prepayment Date shall not be
specified in such notice, the Transfer Prepayment Date shall be the
thirtieth (30th) day after the date of such notice. If the Company shall
not have received a written response to such notice from a holder of Notes
within ten (10) days after the delivery of such telecopied notice to such
holder of Notes, then the Company shall immediately send a second written
notice via an overnight courier of international reputation to each such
holder of Notes who shall not have previously responded to the Company.
(b) Acceptance and Payment. To accept such Prepayment Offer, a holder of
Notes shall cause a notice of such acceptance to be delivered to the
Company not later than twenty (20) days after the date of such first
written notice (or not later than ten (10) days in the case of such second
written notice) from the Company, provided, that failure to respond to
such offer in writing within ten (10) days after the delivery of the
second written notice shall be deemed to be acceptance of the Prepayment
Offer. If so accepted, such offered prepayment equal to not less than such
holder's Ratable Portion shall be due and payable on the Transfer
Prepayment Date. Such offered prepayment shall be made at one hundred
percent (100%) of the principal amount of such Notes being so prepaid,
together with interest and Make-Whole Amount on such principal amount then
being prepaid accrued to and calculated as of the Transfer Prepayment
Date. Two (2) Business
2
Days prior to the making of any such prepayment, the Company shall deliver
to each accepting holder of Notes by facsimile transmission a certificate
of a senior financial officer of the Company, specifying the details of
the calculation of such Ratable Portion and applicable Make Whole Amount
as of such Transfer Prepayment Date.
(c) Officer's Certificate. Each offer to prepay the Notes pursuant to this
Section 5.07 shall be accompanied by a certificate, executed by a senior
financial officer of the Company and dated the date of such offer,
specifying:
(i) the Transfer Prepayment Date and the applicable Ratable Portion
for each holder of Notes;
(ii) that such offer is being made pursuant to Section 5.07 and
Section 8.15 of this Agreement;
(iv) the principal amount of each Note offered to be prepaid;
(v) the interest that would be due on each such Note offered to be
prepaid, accrued to the date fixed for payment; and
(vi) a calculation of the applicable Make Whole Amount as of the
date of such notice (assuming the Notes were being prepaid on such date)
(d) Effect of Prepayment. Each prepayment in respect of the Notes pursuant
to this Section 5.07 shall be applied to reduce ratably all remaining
payments then due on the Notes as provided in Section 5.01.
(e) Notice Concerning Status of Holders of Notes. Promptly after each
Transfer Prepayment Date and the making of all prepayments contemplated on
such Transfer Prepayment Date under this Section 5.07 (and, in any event,
within thirty (30) days thereafter), the Company shall deliver to each
holder of Notes a certificate signed by a senior financial officer of the
Company containing a list of the then current holders of Notes (together
with their addresses) and setting forth as to each such holder the
outstanding principal amount of Notes held by such holder at such time."
3.4. SECTION 8; AFFIRMATIVE COVENANTS. Section 8 of the Existing Note
Agreement is hereby amended by inserting a new Section 8.15 at the end thereof
to read in its entirety as follows:
"SECTION 8.15. Acquisition/Prepayment.
On or before November 1, 2005 the Company shall have either:
(a) Acquired all of the capital stock of each of CAMCO, Inc., a
Nevada corporation and SuperPawn, Inc., a Nevada corporation; or
(b) repaid Indebtedness for Borrowed Money of the Company (other
than Indebtedness for Borrowed Money owing to the Company or any of
its Affiliates
3
and Indebtedness for Borrowed Money in respect of any revolving
credit or similar credit facility providing the Company with the
right to obtain loans or other extensions of credit from time to
time, except to the extent that in connection with such payment of
Indebtedness for Borrowed Money the availability of credit under
such credit facility is permanently reduced by an amount not less
than the amount of the funds applied to the payment of such
Indebtedness for Borrowed Money) which by its terms is not
subordinated in right of payment to the Notes ("Payment
Indebtedness"); provided that in that course of making such
repayment the Company shall offer to prepay each outstanding Note in
accordance with Section 5.07 in a principal amount which, when added
to the Make-Whole Amount applicable thereto, equals the Ratable
Portion for such Note. If any holder of a Note fails to accept such
prepayment, then, for purposes of the preceding sentence only, the
Company nevertheless will be deemed to have paid Payment
Indebtedness in an amount equal to the Ratable Portion in respect of
such Note. As used herein the term "Ratable Portion" in respect of a
holder of Notes means the product of (x) the Remaining Proceeds
Amount multiplied by (y) a fraction the numerator of which is the
outstanding principal amount of Notes held by such holder and the
denominator of which is the aggregate principal amount of Payment
Indebtedness then outstanding (including Payment Indebtedness
evidenced by the Notes) that will receive or be offered any portion
of such repayment (calculated immediately prior to such repayment
and offer). As used herein the term "Remaining Proceeds Amount"
shall be an amount equal to the greater of (1) zero (0) and (2) the
result of (A) $80,000,000 minus (B) the aggregate cash consideration
paid by the Company to acquire one or more operating businesses
engaged in the same line of business as the Company during the
period beginning September 1, 2004 and ending November 1, 2005."
3.5. SECTION 9.02; CONSOLIDATED TANGIBLE NET WORTH. Section 9.02 of the
Existing Note Agreement shall be and is hereby amended and replaced in its
entirety to read as follows:
"SECTION 9.02. Consolidated Tangible Net Worth.
(a) If, on or before November 1, 2005, the Company has acquired all
the capital stock of each of CAMCO, Inc., a Nevada corporation and
SuperPawn, Inc., a Nevada corporation, then the Company will not
permit Consolidated Tangible Net Worth at any time to be less than
the sum of (i) $66,676,000 plus (ii) 50% of Consolidated Adjusted
Net Income (but only if positive) for each Fiscal Quarter ending on
or after August 12, 2002.
(b) If, on or before November 1, 2005, the Company has not (i)
acquired all the capital stock of each of CAMCO, Inc., a Nevada
corporation and SuperPawn, Inc., a Nevada corporation or (ii)
completed at least $80,000,000 of replacement acquisitions, then the
Company will not permit Consolidated Tangible Net Worth at any time
to be less than the sum of (i) $30,625,000 plus (ii) 50% of
Consolidated Adjusted Net Income (but only if positive) for each
Fiscal Quarter ending on or after December 31, 1992."
4
3.6. SECTION 9.14; LIMITATION ON SALE OR ISSUANCE OF SUBSIDIARY STOCK.
Each of Sections 9.14(a) and 9.14(b) of the Existing Note Agreement shall be and
is hereby amended by adding at the end of each such Section the following:
"Notwithstanding the foregoing, the Company or any Subsidiary may at any time
prior to November 1, 2004 complete any one or more Foreign Entity Sales so long
as no Default or Event of Default exists at the time of such Foreign Entity
Sale."
3.7. SECTION 9.15; LIMITATION ON SALE OF PROPERTIES. Section 9.15 of the
Existing Note Agreement shall be and is hereby amended by inserting the
following sentence at the end of such Section, to read in its entirety as
follows:
"Notwithstanding the foregoing, the Company or any Subsidiary may at any
time prior to November 1, 2004 complete any one or more Foreign Entity
Sales, so long as no Default or Event of Default exists at the time of
such Foreign Entity Sale."
Such amendments are referred to herein, collectively, as the "AMENDMENTS."
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce you to enter into this Amendment Agreement and to consent to the
Amendments, the Company represents and warrants to you as follows:
4.1. FULL DISCLOSURE.
Neither the financial statements and other certificates previously
provided to each of the Current Holders pursuant to the provisions of the
Existing Note Agreement nor the statements made in this Amendment Agreement nor
any other written statements furnished to each of the Current Holders by or on
behalf of the Company in connection with the proposal and negotiation of the
transactions contemplated hereby, taken as a whole, contained any untrue
statement of a material fact or omitted a material fact necessary to make the
statements contained therein and herein not misleading, in each case as of the
time such financial statements or certificates were provided or such statements
were made or furnished. There is no fact known to the Company relating to any
event or circumstance that has occurred or arisen since the Closing Date that
the Company has not disclosed to each of the Current Holders in writing that has
had or, so far as the Company can now reasonably foresee, could reasonably be
expected to have, a Material Adverse Effect.
4.2. POWER AND AUTHORITY.
The Company has all requisite corporate power and authority to enter into
and perform its obligations under this Amendment Agreement.
4.3. DUE AUTHORIZATION.
This Amendment Agreement has been duly authorized by all necessary action
on the part of the Company, has been executed and delivered by a duly authorized
officer of the Company,
5
and constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except that enforceability may be
limited by applicable bankruptcy, reorganization, arrangement, insolvency,
moratorium, or other similar laws affecting the enforceability of creditors'
rights generally and subject to the availability of equitable remedies.
4.4. NO DEFAULTS.
No event has occurred and no condition exists that, upon the execution and
delivery of this Amendment Agreement, would constitute a Default or an Event of
Default.
5. EFFECTIVENESS OF AMENDMENTS.
The Amendments shall become effective as of the first date written above
(the "EFFECTIVE DATE") upon the satisfaction of all of the following conditions
precedent:
5.1. EXECUTION AND DELIVERY OF THIS AMENDMENT AGREEMENT.
The Company and each of the Current Holders shall have executed and
delivered this Amendment Agreement.
5.2. NEW BANK LOAN AGREEMENT CONSENT.
Each of the Current Holders shall have received an executed amendment by
and among the Company, Wells Fargo Bank Texas, National Association and the
other Lenders party to that certain Credit Agreement, dated as of August 14,
2002 (the "NEW BANK LOAN AGREEMENT"), permitting the Company's sale of each of
(i) Harvey & Thompson Limited, a limited liability company organized under the
laws of the United Kingdom, and (ii) Svensk Pantbelaning Service, AB, a joint
stock company organized under the laws of Sweden, and waiving the Company's
compliance with various sections of the New Bank Loan Agreement with respect to
such sale.
5.3. GUARANTORS.
Each Guarantor which delivered a Joint and Several Guaranty shall have
executed and delivered to you the Consent and Reaffirmation attached hereto as
Exhibit A.
5.4. AMENDMENT FEE.
The Company shall have paid each holder of a Note a fee in an amount equal
to the product of (a) 0.10 percent (10 basis points) times (b) the outstanding
principal amount of Notes held by such holder on the date hereof.
5.5. FEES AND EXPENSES.
Whether or not the Amendments become effective, the Company will promptly
(and in any event within thirty Business Days of receiving any statement or
invoice therefor) pay all reasonable fees, expenses and costs relating to this
Amendment Agreement, including, but not limited to, the reasonable fees of your
special counsel, Bingham McCutchen LLP, incurred in
6
connection with the preparation, negotiation and delivery of this Amendment
Agreement and any other documents related thereto. Nothing in this Section shall
limit the Company's obligations pursuant to Section 11.02 of the Note Agreement.
6. MISCELLANEOUS.
6.1. PART OF EXISTING NOTE AGREEMENT; FUTURE REFERENCES, ETC.
This Amendment Agreement shall be construed in connection with and as a
part of the Existing Note Agreement and, except as expressly amended by this
Amendment Agreement, all terms, conditions and covenants contained in the
Existing Note Agreement are hereby ratified and shall be and remain in full
force and effect. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Amendment Agreement may refer to the Existing Note Agreement without making
specific reference to this Amendment Agreement, but nevertheless all such
references shall include this Amendment Agreement unless the context otherwise
requires.
6.2. COUNTERPARTS.
This Amendment Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
6.3. GOVERNING LAW.
THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE
OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; NEXT PAGE IS SIGNATURE PAGE.]
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If you are in agreement with the foregoing, please so indicate by signing
the acceptance below on the accompanying counterpart of this agreement and
returning it to the Company, whereupon it will become a binding agreement among
you and the Company.
CASH AMERICA INTERNATIONAL, INC.
By: /s/ David J. Clay
---------------------------------
Name: David J. Clay
Title: Vice President and Treasurer
The foregoing Amendment Agreement is hereby accepted as of the date first
above written. By its execution below, each of the undersigned represents that
it is either the registered owner of one or more of the Senior Notes or is the
beneficial owner of one or more of the Senior Notes and is authorized to enter
into this Agreement in respect thereof.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Estelle Simsolo
------------------------------------
Name: Estelle Simsolo
Title: Director-Private Placements
[Signature Page to Amendment No. 8 to Note Agreement]
ANNEX 1
CURRENT HOLDERS
Teachers Insurance and Annuity Association of America
EXHIBIT A
CONSENT AND REAFFIRMATION
Each of the undersigned (the "GUARANTORS") hereby (i) acknowledges receipt
of a copy of the foregoing Supplement No. 8 to Note Agreement (the "EIGHTH
AMENDMENT"); (ii) consents to the Company's execution and delivery thereof;
(iii) agrees to be bound thereby; and (iv) affirms that nothing contained
therein shall modify in any respect whatsoever its guaranty of the obligations
of the Company to the holders of the Notes pursuant to the terms of those
certain Joint and Several Guaranties, entered into by the Guarantors pursuant to
the terms of the Note Agreement (collectively, the "GUARANTY"), and (v)
reaffirms that the Guaranty is and shall continue to remain in full force and
effect. Although each of the Guarantors has been informed of the matters set
forth herein and in the Eighth Amendment and has acknowledged and agreed to
same, such Guarantors understand that the holders of the Notes have no
obligation to inform any of the Guarantors of such matters in the future or to
seek any of the Guarantors' acknowledgment or agreement to future amendments or
waivers, and nothing herein shall create such a duty.
In witness whereof, each of the undersigned has executed this Consent and
Reaffirmation on and as of the date of such Eighth Amendment.
GUARANTORS
BRONCO PAWN & GUN, INC., AN OKLAHOMA CORPORATION
CASH AMERICA FINANCIAL SERVICES, INC.,
A DELAWARE CORPORATION
CASH AMERICA FRANCHISING, INC.
CASH AMERICA HOLDING, INC.
CASH AMERICA MANAGEMENT L.P.,
A DELAWARE LIMITED PARTNERSHIP, BY ITS GENERAL PARTNER,
CASH AMERICA HOLDING, INC.
CASH AMERICA OF MISSOURI, INC.
CASH AMERICA PAWN L.P., A DELAWARE LIMITED PARTNERSHIP,
BY ITS GENERAL PARTNER, CASH AMERICA HOLDING, INC.
CASH AMERICA PAWN, INC. OF OHIO
CASH AMERICA, INC.
CASH AMERICA, INC. OF ALABAMA
CASH AMERICA, INC. OF COLORADO
CASH AMERICA, INC. OF ILLINOIS, AN ILLINOIS CORPORATION
CASH AMERICA, INC. OF INDIANA
CASH AMERICA, INC. OF KENTUCKY
CASH AMERICA, INC. OF LOUISIANA
CASH AMERICA, INC. OF NORTH CAROLINA
CASH AMERICA, INC. OF OKLAHOMA
CASH AMERICA, INC. OF SOUTH CAROLINA
CASH AMERICA, INC. OF TENNESSEE
CASH AMERICA, INC. OF UTAH
DOC HOLLIDAY'S PAWNBROKERS & JEWELLERS, INC.,
A DELAWARE CORPORATION
EXPRESS CASH INTERNATIONAL CORPORATION
FLORIDA CASH AMERICA, INC.
GAMECOCK PAWN & GUN, INC., A SOUTH CAROLINA CORPORATION
GEORGIA CASH AMERICA, INC.
HORNET PAWN & GUN, INC., A NORTH CAROLINA CORPORATION
LONGHORN PAWN & GUN, INC., A TEXAS CORPORATION
MR. PAYROLL CORPORATION, A DELAWARE CORPORATION
TIGER PAWN & GUN, INC., A TENNESSEE CORPORATION
UPTOWN CITY PAWNERS, INC., AN ILLINOIS CORPORATION
VINCENT'S JEWELERS AND LOAN, INC.
CASHLAND FINANCIAL SERVICES, INC.
CASH AMERICA ADVANCE, INC.
RATI HOLDING, INC.
By: /s/ David J. Clay
---------------------------------
Name: David J. Clay
Title: Treasurer for All
CASH AMERICA INTERNATIONAL, INC.
By: /s/ David J. Clay
---------------------------------
Name: David J. Clay
Title: Vice President and Treasurer