EXHIBIT 4.2.1
[4/93 Notes]
AMENDMENT TO NOTE PURCHASE AGREEMENT
------------------------------------
THIS AMENDMENT TO NOTE PURCHASE AGREEMENT, dated as of September 20,
1994 (the "Amendment"), amends the Note Purchase Agreement dated as of April 15,
1993 (the "Agreement"), between THE MONEY STORE INC., a New Jersey corporation
(together with any corporation succeeding thereto by merger, consolidation, or
acquisition of all or substantially all of its assets as permitted in accordance
with Section 5.5 of the Agreement, the "Company"), and the several note
purchasers named in Schedule I to the Agreement (together with their permitted
successors, assigns, and transferees, the "Note Purchasers"; the Note Purchasers
currently a party to the Agreement are named on Schedule I hereto), relating to
the issuance and sale of the Company's 7.63% Senior Notes due April 15, 1998
(the "Notes").
W I T N E S S E T H:
-------------------
WHEREAS, the Company desires to amend the Agreement to, among other
things, modify and amend certain of the definitions and covenants contained
therein, and the Note Purchasers holding at least a majority of the unpaid
principal amount of the Notes are willing to agree to such amendments, subject
to the terms and conditions hereinafter set forth;
WHEREAS, the Company is also a party to (i) the several Note
Agreements, dated as of December 29, 1989, as amended from time to time prior to
the date hereof, with each of the several note purchasers respectively named
therein, relating to the issuance and sale of the Company's 12% Senior
Subordinated Notes due December 31, 1996, (ii) a Note Purchase Agreement, dated
as of September 9, 1992, with the several note purchasers named in Schedule I
thereto, relating to the issuance and sale of the Company's 8.57% Series A
Senior Notes due September 9, 1996, and the Company's 9.16% Series B Senior
notes due September 9, 1997, and (iii) a Note Purchase Agreement, dated as of
September 30, 1993, with the several note purchasers named in Schedule I
thereto, relating to the issuance and sale of the Company's 7.73% Series A
Senior Notes due September 30, 2000, and the Company's 7.94% Series B Senior
Notes due September 30, 2000 (taken together, the "Additional Agreements"); and
WHEREAS, the Company desires to amend the Additional Agreements to,
among other things, modify and amend certain of the definitions and covenants
contained therein, and the note purchasers holding an aggregate of at least a
majority in unpaid principal amounts of the notes issued under each of the
Additional Agreements are willing to agree to such amendments (the "Additional
Amendments"), subject to the terms and conditions set forth in the Additional
Amendments.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Capitalized Terms. Unless otherwise defined herein, capitalized
-----------------
terms used herein shall have the respective meanings given thereto in the
Agreement.
2. Amendments to the Agreement. Subject to the terms and conditions
---------------------------
set forth herein, and in reliance upon the representations and warranties set
forth or incorporated herein, the Agreement is amended, effective as of the date
hereof as follows:
2.01. Section 5.7 of the Agreement is hereby amended by deleting
the word "or" after clause (5), deleting the period after clause (6), inserting
the word "; or" after clause (6) and inserting the following new Section
5.7(a)(7):
(7) Liens placed on tangible real or personal Property being acquired by
the Company or any Restricted Subsidiary security Debt incurred to finance
all or part of the purchase price thereof, provided that (i) the principal
amount of such Debt shall not exceed 80% of the fair market value of such
Property at the time of such incurrence and (ii) the aggregate principal
amount of all Debt secured by Liens permitted by this clause (7) shall not
exceed $60,000,000 at any time outstanding.
2.02. Section 5.9 of the Agreement is hereby deleted in full. The
references to Section 5.9 appearing in Sections 5.6(b), 5.15(a) and 5.15(b) of
the Agreement are hereby deleted. The following new Section 5.9 is inserted in
lieu thereof:
Section 5.9. Default Under Subordinated Debt. The Company will not at any
time permit any default or event of default under any Subordinated Debt to
exist which default or event of default remains uncured for a period of 15
days (or such lesser period as is provided for such default or event of
default in the agreement establishing such Subordinated Debt).
2.03. Section 5.10 of the Agreement is hereby deleted in full and
the following new Section 5.10 is inserted in lieu thereof:
Section 5.10. Subordinated Debt. The Company will not at any time after
-----------------
August 31, 1994, issue any Subordinated Debt unless the first sinking fund
payment or other required payment or prepayment of principal with respect
to such Subordinated Debt is scheduled to occur after September 30, 2000.
2.04. Section 5.11 of the Agreement is hereby deleted in full and
the following new Section 5.11 is inserted in lieu thereof:
Section 5.11. Total Debt. The Company will not permit, (i) as of the
----------
last day of any fiscal quarter, (a) the ratio of Total Debt plus Contingent
Obligations to Consolidated Tangible Net Worth to exceed 7 to 1 or (b) the
ratio of Total Debt to Consolidated Tangible Net Worth to exceed 5 to 1, or
(ii) as of any date other than the last day of each fiscal quarter, (a) the
ratio of Total Debt plus Contingent Obligations to Consolidated Tangible
Net Worth to exceed 8 to 1 or (b) the ratio of Total Debt to Consolidated
Tangible Net Worth to exceed 7 to 1.
2.05. Section 5.12 of the Agreement is hereby deleted in full and
the following new Section 5.12 is inserted in lieu thereof:
Section 5.12. Secured Debt. The Company will not permit, as of the last
------------
day of any fiscal quarter, Secured Debt to exceed 50% of the total
liabilities (excluding deferred taxes) of the Company and its Restricted
Subsidiaries, determined on a consolidated basis.
2.06. Section 5.13 of the Agreement is hereby deleted in full and
the following new Section 5.13 is inserted in lieu thereof:
-2-
Section 5.13. Coverage Requirements. The Company will not at any time
---------------------
permit the sum of (i) Consolidated Pre-Tax Income and (ii) Fixed Charges,
for the most recent period of four consecutive fiscal quarters of the
Company, to be less than 150% of Fixed Charges for such period of four
consecutive fiscal quarters.
2.07. The first sentence of Section 5.14(c) of the Agreement is
hereby deleted in full and the following new sentence is inserted in lieu
thereof:
Neither the Company nor any Restricted Subsidiary will make or become
obligated to make any Restricted Investment unless, after giving effect
thereto, the aggregate amount (at original cost) of all outstanding
Restricted Investments of the Company and all Restricted Subsidiaries shall
be less than 10% of Consolidated Tangible Net Worth.
2.08. Section 5.16 of the Agreement is hereby deleted in full and
the following new Section 5.16 is inserted in lieu thereof:
Section 5.16. Consolidated Tangible Net Worth. The Company will at all
-------------------------------
times during each calendar year maintain Consolidated Tangible Net Worth of
not less than the sum of (i) $150,000,000 plus (ii) 50% of the aggregate
Consolidated Net Income for the period from July 1, 1994 to and including
December 31, 1994 and for each fiscal year of the Company thereafter (but
without deducting from such amount any income deficit in any such period or
fiscal year) plus (iii) the aggregate net proceeds received by the Company
after June 30, 1994 from any issue and sale of its capital stock (less any
portion of the net proceeds of such sale of capital stock which was used by
the Company to contemporaneously redeem or acquire any of the Company's
capital stock or warrants, rights or other options to purchase or acquire
such stock).
2.09. Section 5.17(a) of the Agreement is hereby deleted in full
and the following new Section 5.17(a) is inserted in lieu thereof:
(a) The Company will at all times maintain a ration of Includable
Assets to Includable Liabilities of not less than 1 to 1.2.
2.10. The portion of Section 5.22 of the Agreement which precedes
clause (y) thereof is hereby deleted in full and the following is inserted in
lieu thereof:
At all times, either Xxxx Xxxxxxxxxx or Xxxx Xxxxxxxxxx shall devote full
attention to, and be actively engaged in, the management of the Company and
Restricted Subsidiaries and at least two persons from the group consisting
of Xxxxxx Dear, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxx and Xxxxxxxx
Xxxxxxxx shall devote their full attention to, and be actively engaged in,
the management of the Company and Restricted Subsidiaries; provided,
--------
however, that it shall not be deemed to be a violation of this Section
-------
5.22 (x) if the conditions set forth above in this Section 5.22 cannot be
met because one or more of the group consisting of Xxxxxx Dear, Xxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxx and Xxxxxxxx Xxxxxxxx shall be
unable to devote his attention to, and be actively engaged in, the
management of the Company as a result of such Person's death or disability
and as a result at least two Persons from such group shall not continue to
be actively engaged in the management of the Company,
-3-
2.11. Section 6.1(a)(iv) of the Agreement is hereby deleted in
full and the following new Section 6.1(a)(iv) is inserted in lieu thereof:
(iv) a "cash basis" income statement, setting forth gross revenues less
expenses (including costs and expenses of operations, general corporate
expense and Fixed Charges) of the Company and its Restricted Subsidiaries,
determined on a consolidated cash basis,
2.12. Section 6.1(b)(iv) of the Agreement is hereby deleted in
full and the following new Section 6.1(b)(iv) is inserted in lieu thereof:
(iv) a "cash basis" income statement, setting forth gross revenues less
expenses (including costs and expenses of operations, general corporate
expense and Fixed Charges) of the Company and its Restricted Subsidiaries,
determined on a consolidated cash basis,
2.13. Section 7.2 of the Agreement is hereby amended by deleting
the definition of "Contingent Obligations" and inserting the following
definition in lieu thereof:
Contingent Obligations - means, at any date, the total of the Company's
----------------------
and the Restricted Subsidiaries' obligations to repurchase second mortgage
or other non-purchase money mortgage loans as presented in the footnotes to
the Company's most recent annual or quarterly consolidated financial
statements.
2.14. In Section 7.2 of the Agreement, clause (5) of the
definition of "Debt" is hereby deleted in full. The word "and" is hereby
inserted at the end of clause (4) of the definition of "Debt". Present
subclause (6) of the definition of "Debt" is hereby renumbered as "(5)".
2.15. In Section 7.2 of the Agreement, the definition of "Total
Senior Debt" is hereby deleted in full.
3. Effectiveness of Amendments. This Amendment shall become effective
---------------------------
upon (i) compliance with the provisions of Section 10 of the Agreement, (ii) the
effectiveness of the Additional Amendments, (iii) the delivery to special
counsel to the Note Purchasers, for redistribution to each Note Purchaser, of an
executed Confirmation of Guaranty, in substantially the form attached hereto as
Exhibit A, (iv) the delivery to special counsel to the note Purchasers, for
redistribution to each Note Purchaser, of the opinion of Xxxx X. Xxxxx,
Corporate Counsel to the Company, in substantially the form attached hereto as
Exhibit B and (v) the delivery to special counsel to the Note Purchasers, for
redistribution to each Note Purchaser, of the opinion of the law firm of Stroock
& Stroock & Xxxxx, counsel to the Company, in substantially the form attached
hereto as Exhibit C.
4. Representations and Warranties. In order to induce the Note
------------------------------
Purchasers to enter into this Amendment, the Company hereby represents and
warrants as follows:
4.01. Power, Authority, Non-Contravention. The execution,
-----------------------------------
delivery and performance by the Company of this Amendment and any other
documents or instruments delivered in connection herewith are within the
Company's corporate powers, have been duly authorized by all necessary corporate
action, do not and will not contravene, nor will they require any consent under
any law, rule, regulation (including, without limitation, regulations G, T, U,
and X of the Board of Governors of the Federal Reserve System), order, writ,
judgment,
-4-
injunction, decree, determination or award or any contractual restriction
binding on or affecting the Company or any of its properties.
4.02. Consents. No authorization, consents, or approval or other
--------
action by, and no notice or filing with, any governmental authority or
regulatory body is required for the due execution, delivery, or performance by
the Company of this Amendment and any other documents or instruments being
executed and delivered in connection herewith or for the validity or
enforceability thereof.
4.03. Validity and Enforceability. This Amendment and the
---------------------------
Confirmation of Guaranty, respectively, have been duly executed and delivered by
the Company and the Subsidiaries listed on Schedule I to the Confirmation of
Guaranty and are legal and binding obligations of the Company or such
Subsidiaries, as the case may be (except as enforcement of the terms thereof is
subject to the effect of bankruptcy, insolvency, reorganization, receivership,
fraudulent conveyance, moratorium, arrangement and assignment for the benefit of
creditor laws and similar laws relating to or affecting creditors' rights
generally (including, but not limited to, matters of turnover, automatic stay,
avoiding powers, fraudulent transfer, preference and discharge) and court
decisions with respect thereto and except as the equitable remedy of specific
performance and other equitable remedies are subject to the discretion of the
court) and will not conflict with, constitute a violation of, or result in the
creation of any Lien upon any Property of the Company or any Subsidiary under
the provisions of, any agreement, charter instrument, by-law or other instrument
to which the Company or any Subsidiary is a party or by which any of them or
their respective Properties may be bound.
4.04. No Event of Default. No Event of Default or Default exists.
-------------------
4.05. Other Representations and Warranties. The representations
------------------------------------
and warranties of the Company set forth in Sections X-0, X-0, X-0, X-0 and X-0,
X-00 and B-11 (solely as to those portions of the Agreement and the Guaranty as
they may be applied to the Amendment and the Confirmation of Guaranty) of the
Agreement are true and correct on the date hereof as if restated at and as of
the date hereof and such representations and warranties are hereby incorporated
by reference.
4.06. Guarantors. The Subsidiaries executing the Confirmation of
----------
Guaranty herewith are all of the Subsidiaries which are Guarantors (as such term
is defined in the Senior Guaranty Agreement) under the Senior Guaranty Agreement
and have each executed either the original Senior Guaranty Agreement or a
counterpart thereto. Except for those parties that have since been merged into,
and have had their obligations under the Senior Guaranty Agreement assumed by a
Subsidiary which was, at the time of the merger, and is, on the date hereof, a
Guarantor under the Senior Guaranty Agreement, no party that was a Guarantor
when the Senior Guaranty Agreement was originally executed has ceased to be a
subsidiary of the Company or a Guarantor under the Senior Guaranty Agreement.
4.07. Survival. All representations, warranties and covenants of
--------
the Company contained in this Amendment or made in writing by or on behalf of
the Company in connection with the transactions contemplated hereby shall be
considered to have been relied upon by the Note Purchasers and shall survive the
execution and delivery of this Amendment, regardless of any investigation at any
time made by any Note Purchaser or on its behalf. All statements contained in
any certificate or other instrument delivered by or on behalf of the Company
hereunder or in connection with the transactions contemplated hereby shall be
deemed representations and warranties of the Company hereunder.
-5-
5. References. On and after the date hereof, each reference in the
----------
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like
import shall mean and be a reference to the Agreement as amended hereby.
6. Continued Effectiveness. Except as specifically amended hereby, all
-----------------------
of the terms and provisions of the Agreement shall remain unchanged and in full
force and effect.
7. No Waiver. The execution, delivery, and effectiveness of this
---------
Amendment shall not operate as a waiver of any right, power or remedy of the
Note Purchasers under the Agreement, nor constitute a waiver of any provision of
the Agreement.
8. Counterparts. This Amendment may be signed in any number of
------------
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
9. Governing Law. This Amendment shall be governed by, and construed
-------------
and enforced in accordance with, the laws of the state of New York (without
regard to the conflict of law provisions thereof) including all matters of
construction, validity and performance.
-6-
