EXHIBIT 10.93
SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated
as of September 27, 2005 (this "Amendment"), is among EZCORP, INC., a Delaware
corporation (the "Borrower"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Agent for itself and the other Lenders (the "Agent") and as the Issuing Bank,
and the Lenders.
RECITALS:
A. The Borrower, the Agent, the Lenders and the Issuing Bank have
previously entered into that certain Third Amended and Restated Credit Agreement
dated as of April 8, 2004 (as the same has been amended, restated or modified
from time to time, the "Agreement").
B. A new indirect subsidiary of the Borrower, EZMONEY Wisconsin, Inc., a
Delaware corporation ("EZMONEY Wisconsin"), was created on September 9, 2005,
and concurrent with the execution of this Amendment, EZMONEY Wisconsin has
executed and delivered documents, agreements and instruments required pursuant
to Section 8.10 of the Agreement in order to be a Guarantor under the Loan
Documents.
C. The Agent, the Lenders and the Borrower desire to amend Schedule 7.14
to, and several other provisions of, the Agreement in order to (i) reflect the
addition of EZMONEY Wisconsin and (ii) to permit the Borrower to prepay
Eurodollar Advances on days other than the last day of the respective Interest
Periods on the terms and subject to the conditions and to the extent set forth
below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto hereby agree as
follows:
ARTICLE I
Definitions
Section 1.1 Definitions. All capitalized terms not otherwise defined
herein shall have the same meanings as in the Agreement, as amended hereby.
ARTICLE II
Amendment
Section 2.1 Amendment to Section 4.2. Effective as of the date hereof,
Section 4.2 of the Agreement is hereby amended and restated to read in its
entirety as follows:
Section 4.2 Voluntary Prepayment. The Borrower may, upon at least one
Business Day prior notice to the Agent in the case of Base Rate Advances
(except as otherwise provided for under Section 2.7(a) for Swing Loan
Advances), and at least three Business Days prior notice to the Agent in
the case of Eurodollar Advances, voluntarily prepay the
Advances in whole at any time or from time to time in part without premium
or penalty but with accrued interest to the date of prepayment on the
amount so prepaid, provided that (a) any prepayments of Eurodollar
Advances, if prepaid on other than the last day of the Interest Period for
such Advances, shall be accompanied by all additional amounts which may be
required pursuant to Sections 5.1 and 5.5 and (b) each partial prepayment
shall be in the principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof. All notices under this Section shall be
irrevocable and shall be given not later than 11:00 a.m. (Austin, Texas
time) on the day which is not less than the number of Business Days
specified above for such notice. Any such voluntary prepayments shall be
applied as the Borrower and the Agent may agree, but in the absence of
such agreement, first to the Swing Loan Advances, then to Letter of Credit
Disbursements for which the Issuing Bank has not been reimbursed by the
Borrower, then to Base Rate Advances under the Revolving Credit Loan, then
to Eurodollar Advances under the Revolving Credit Loan and then to the
remaining Letter of Credit Liabilities. Any prepayments hereunder shall be
accompanied with accrued and unpaid interest on the amount prepaid to the
date of prepayment.
Section 2.2 Amendment to Section 5.1(a). Effective as of the date hereof,
Section 5.1(a) of the Agreement is hereby amended and restated to read in its
entirety as follows:
(a) The Borrower shall pay directly to each Lender from time to time
such amounts as such Lender may determine in good faith to be required to
compensate such Lender for any additional losses, out-of-pocket costs, or
expenses which it may reasonably incur as a result of such payment or
nonpayment, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of a liquidation
or reemployment of deposits or other funds acquired by any Lender to fund
or maintain any Eurodollar Advances hereunder or its obligation to make
any of such Advances hereunder, or any reduction in any amount receivable
by such Lender hereunder in respect of any such Advances or such
obligation (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any Regulatory
Change which:
(i) changes the basis of taxation of any amounts payable to
such Lender under this Agreement or its Note (or Notes) in respect
of any of such Advances (other than taxes imposed on the overall net
income of such Lender or its Applicable Lending Office for any of
such Advances by the jurisdiction in which such Lender has its
principal office or such Applicable Lending Office);
(ii) imposes or modifies any reserve, special deposit, minimum
capital, capital ratio, or similar requirement relating to any
extensions of credit or other assets of, or any deposits with or
other liabilities or commitments of, such Lender (including any of
such Advances or any deposits referred to in the definition of
"Eurodollar Rate" in Section 1.1 hereof); or
(iii) imposes any other condition affecting this Agreement or
the Notes or any of such extensions of credit or liabilities or
commitments.
Each Lender will notify the Borrower of any event occurring after the date
of this Agreement which will entitle such Lender to compensation pursuant
to this Section 5.1(a) as promptly as practicable after it obtains
knowledge thereof and determines to request
such compensation, and will designate a different Applicable Lending
Office for the Advances affected by such event if such designation will
avoid the need for, or reduce the amount of, such compensation and will
not, in the sole opinion of such Lender, violate any law, rule, or
regulation or be in any way disadvantageous to such Lender, provided that
such Lender shall have no obligation to so designate an Applicable Lending
Office located in the United States of America. Each Lender will furnish
the Borrower with a certificate setting forth the basis and the amount of
each request of such Lender for compensation under this Section 5.1(a). If
any Lender requests compensation from the Borrower under this Section
5.1(a), the Borrower may, by notice to such Lender (with a copy to the
Agent) suspend the obligation of such Lender to make or Continue making,
or Convert Advances into, Advances of the Type with respect to which such
compensation is requested until the Regulatory Change giving rise to such
request ceases to be in effect (in which case the provisions of Section
5.4 hereof shall be applicable). For purposes of calculating amounts
payable by the Borrower to the Lenders under this Section 5.1 and Section
5.5, each Lender shall be deemed to have funded each Eurodollar Advance
made by it at the Eurodollar Rate used in determining the Adjusted
Eurodollar Rate for such Eurodollar Advance by a matching deposit or other
borrowing in the London interbank market for a comparable amount and for a
comparable period, whether or not such Eurodollar Advance was in fact so
funded.
Section 2.3 Amendment to Schedule 7.14. Effective as of the date hereof,
all references to "Schedule 7.14" in the Agreement shall be deemed to mean
the "Schedule 7.14" attached hereto as Schedule 7.14.
ARTICLE III
Conditions Precedent
Section 3.1 Conditions. The effectiveness of this Amendment is subject to
the satisfaction of the following conditions precedent:
(a) Amendment. The Agent shall have received this Amendment executed by
the Borrower and the Agent and consented to by the Guarantors.
(b) Joinder Documents. The Agent shall have received a supplement to the
Guaranty, a supplement to the Contribution and Indemnification Agreement,
a supplement to the Subsidiary Security Agreement and such other documents
required pursuant to Section 8.10 of the Agreement, all duly executed by
EZMONEY Wisconsin.
(c) No Default. No Default shall have occurred and be continuing.
(d) Representations and Warranties. All of the representations and
warranties contained in Article VII of the Agreement and in the other Loan
Documents shall be true and correct on and as of the date of this
Amendment with the same force and effect as if such representations and
warranties had been made on and as of such date, except to the extent such
representations and warranties speak to a specific date.
(e) Additional Documentation. The Agent shall have received such
additional approvals, opinions or documents as the Agent or its legal
counsel may reasonably request.
ARTICLE IV
Ratifications, Representations and Warranties
Section 4.1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions
set forth in the Agreement and except as expressly modified and superseded
by this Amendment, the terms and provisions of the Agreement and the other
Loan Documents are ratified and confirmed and shall continue in full force
and effect. The Borrower and the Agent agree that the Agreement as amended
hereby and the other Loan Documents shall continue to be legal, valid,
binding and enforceable in accordance with their respective terms.
Section 4.2 Representations and Warranties. The Borrower hereby represents
and warrants to the Lenders, the Agent and the Issuing Bank that (a) the
execution, delivery and performance of this Amendment and any and all
other Loan Documents EXECUTED AND/OR DELIVERED IN CONNECTION HEREWITH HAVE
BEEN AUTHORIZED BY ALL REQUISITE CORPORATE ACTION ON THE PART OF THE
BORROWER AND WILL NOT VIOLATE THE CERTIFICATE OF INCORPORATION OR BYLAWS
OF THE BORROWER, (B) THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE
AGREEMENT, AND ANY OTHER LOAN DOCUMENT ARE TRUE AND CORRECT ON AND AS OF
THE DATE HEREOF AS THOUGH MADE ON AND AS OF THE DATE HEREOF (EXCEPT FOR
SUCH REPRESENTATIONS AND WARRANTIES AS ARE LIMITED BY THEIR EXPRESS TERMS
TO A SPECIFIC DATE), (C) EFFECTIVE UPON THE EXECUTION OF THIS AMENDMENT
AND THE LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH, NO DEFAULT HAS
OCCURRED AND IS CONTINUING, AND (D) THE BORROWER IS IN FULL COMPLIANCE
WITH ALL COVENANTS AND AGREEMENTS CONTAINED IN THE AGREEMENT AS AMENDED
HEREBY.
ARTICLE V
Miscellaneous
Section 5.1 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan
Document including any Loan Document furnished in connection with this
Amendment shall survive the execution and delivery of this Amendment and
the other Loan Documents, and no investigation by the Lenders, the Agent
or the Issuing Bank or any closing shall affect the representations and
warranties or the right of the Lenders, the Agent or the Issuing Bank or
the Agent to rely upon them.
Section 5.2 Reference to Agreement. Each of the Loan Documents, including
the Agreement and any and all other agreements, documents, or instruments
now or hereafter executed and delivered pursuant to the terms hereof or
pursuant to the terms of the Agreement as amended hereby, are hereby
amended so that any reference in such Loan Documents to the Agreement
shall mean a reference to the Agreement as amended hereby.
Section 5.3 Expenses of Agent. As provided in the Agreement, Borrower
agrees to pay on demand all costs and expenses incurred by the Agent in
connection with the preparation, negotiation, and execution of this
Amendment and the other Loan Documents executed pursuant hereto and any
and all amendments, modifications, and supplements thereto, including
without limitation the reasonable costs and fees of the Agent's legal
counsel, and all costs and expenses incurred by the Agent in connection
with the enforcement or preservation of any rights under the Agreement or
any other Loan Document, including without limitation the reasonable costs
and fees of the Agent's legal counsel.
Section 5.4 Severability. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall
be confined to the provision so held to be invalid or unenforceable.
Section 5.5 Applicable Law. This Amendment and all other Loan Documents
executed pursuant hereto shall be governed by and construed in accordance
with the laws of the State of Texas and the applicable laws of the United
States of America.
Section 5.6 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Lenders, the Agent, the Issuing Bank and
the Borrower and their respective successors and assigns, except the
Borrower may not assign or transfer any of its rights or obligations
hereunder without the prior written consent of the Lenders and the Agent.
Section 5.7 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and
the same instrument. Signatures transmitted by facsimile, email or other
electronic medium shall be effective as originals.
Section 5.8 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 5.9 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER
WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED
OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS AMONG THE PARTIES HERETO.
[Remainder of Page Intentionally Left Blank]
Executed as of the date first written above.
BORROWER:
EZCORP, INC.
By:
---------------------------------------
Joseph L. Rotunda
President and Chief Executive Officer
AGENT, ISSUING BANK AND LENDERS:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Agent, Issuing Bank and a Lender
By:
---------------------------------------
Richard Gan
Vice President
GUARANTY BANK,
as a Lender
By:
----------------------------------------
Daniel Leonard
Assistant Vice President
The Guarantors hereby consent and agree to this Amendment and agree that
the Guaranty shall remain in full force and effect and shall continue to (i)
guarantee the Guaranteed Indebtedness (as defined in the Guaranty), and (ii) be
the legal, valid and binding obligation of the Guarantors and enforceable
against the Guarantors in accordance with its terms. In addition, the Guarantors
hereby agree that each Subsidiary Security Agreement, the Contribution and
Indemnification Agreement and each Real Property Security Document shall remain
in full force and effect and shall continue to (i) secure the Obligations (as
defined in the Loan Documents other than the Real Property Security Documents)
and the Debt (as defined in the Real Property Security Documents), and (ii) be
the legal, valid and binding obligation of the Guarantors and enforceable
against the Guarantors and collateral in accordance with their respective terms.
OBLIGATED PARTIES:
EZCORP INTERNATIONAL, INC.
EZMONEY COLORADO, INC.
EZMONEY HOLDINGS, INC.
EZMONEY MANAGEMENT, INC.
EZPAWN ALABAMA, INC.
EZPAWN ARKANSAS, INC.
EZPAWN COLORADO, INC.
EZPAWN FLORIDA, INC.
EZPAWN HOLDINGS, INC.
EZPAWN INDIANA, INC.
EZPAWN LOUISIANA, INC.
EZPAWN NEVADA, INC.
EZPAWN OKLAHOMA, INC.
EZPAWN TENNESSEE, INC.
PAYDAY LOAN MANAGEMENT, INC.
TEXAS EZPAWN MANAGEMENT, INC.
EZMONEY WISCONSIN, INC.
By:
---------------------------------------
Joseph L. Rotunda
President and Chief Executive Officer
TEXAS EZPAWN, L.P.
By: Texas EZPAWN Management, Inc.,
its sole general partner
By:
---------------------------------
Joseph L. Rotunda
President and Chief Executive Officer
TEXAS PRA MANAGEMENT, L.P.
By: EZMONEY Management, Inc.,
its sole general partner
By:
-----------------------------------
Joseph L. Rotunda
President and Chief Executive Officer
TEXAS EZMONEY, L.P.
By: PAYDAY LOAN MANAGEMENT, INC.,
its sole general partner
By:
-----------------------------------
Joseph L. Rotunda
President and Chief Executive Officer
SCHEDULE 7.14
List of Subsidiaries
Number of
Shares or
Type of Jurisdiction Federal State I.D. Foreign Percent
Corporate Name Entity of Entity Tax I.D. Number Jurisdictions Interest
- -------------------------- ----------- ------------ ---------- ------------ --------------- ---------
EZCORP, Inc. Corporation Delaware 74-2540145 2196789 TX
EZCORP INTERNATIONAL, INC. Corporation Delaware 74-2874123 2870970 N/A 1,000
EZPAWN Alabama, Inc. Corporation Delaware 74-2643349 2307445 AL 1,000
EZPAWN Arkansas, Inc. Corporation Delaware 74-2629548 2292291 AR 1,000
EZPAWN Colorado, Inc. Corporation Delaware 74-2629549 CO - 2284741/ CO & TX 1,000
TX - 8700005692
EZPAWN Florida, Inc. Corporation Delaware 74-2655620 2313729 FL 1,000
EZPAWN Indiana, Inc. Corporation Delaware 74-2655624 2317132 IN 1,000
EZMONEY Management, Inc. Corporation Delaware 74-2655625 2307447 TX 1,000
EZPAWN Louisiana, Inc. Corporation Delaware 74-2704187 2392318 LA 1,000
EZPAWN Nevada, Inc. Corporation Delaware 74-2672899 NV - 2328220/ NV & CA 1,000
CA - 2010557
EZPAWN Oklahoma, Inc. Corporation Delaware 74-2621073 2284738 OK 1,000
EZMONEY Holdings, Inc. Corporation Delaware 74-2672902 2326107 N/A 1,000
EZPAWN Tennessee, Inc. Corporation Delaware 74-2641965 2302767 TN 1,000
EZPAWN Holdings, Inc. Corporation Delaware 74-2540146 2198785 MS 100
Texas EZPAWN Management, Inc. Corporation Delaware 74-2689697 2361958 TX 1,000
Texas EZPAWN L.P. Limited Texas 74-2689698 7127110
Partnership
Texas PRA Management, L.P. Limited Texas 02-0596091 800081488
Partnership
Texas EZMONEY, L.P. Limited Texas 83 - 0360848 800210635
Partnership
Payday Loan Management, Inc. Corporation Delaware 83 - 0360843 800220645 TX 1,000
EZMONEY Colorado, Inc. Corporation Delaware 20 - 2531048 20051041748 CO 1,000
EZMONEY Wisconsin, Inc. Corporation Delaware 20 - 3415652 WI 1,000