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EXHIBIT 10.3
FOURTH AMENDMENT TO
SENIOR REVOLVING CREDIT FACILITY AGREEMENT
THIS FOURTH AMENDMENT TO SENIOR REVOLVING CREDIT FACILITY AGREEMENT (the
"Fourth Amendment") is entered into as of the 7th day of June, 1995, by and
among NATIONSBANK OF TEXAS, N.A. ("NationsBank"), FIRST INTERSTATE BANK OF
TEXAS, N.A. ("First Interstate"), BANK ONE, TEXAS, N.A. ("Bank One"), THE
DAIWA BANK, LTD. ("Daiwa"), CITIBANK, N.A. ("Citibank") and BANK OF AMERICA
TEXAS, N.A. ("Bank of America") (such banks, and their successors and assigns,
are collectively referred to herein as "Banks"), TEXAS COMMERCE BANK NATIONAL
ASSOCIATION (successor by merger to Texas Commerce Bank, National Association)
("Texas Commerce"), for the purpose of Section 9 hereto only, CASH AMERICA
INTERNATIONAL, INC., a Texas corporation ("Company"), and NationsBank as
Issuing Bank and as Administrative Agent for Banks to the extent and in the
manner provided for in the "Credit Agreement" (defined below and herein so
called), with the acknowledgement, approval and agreement of all "Guarantors"
and "Consolidated Subsidiaries" (as each of such terms is defined in the Credit
Agreement) existing as of the date hereof.
W I T N E S S E T H:
WHEREAS, certain of the Banks, Texas Commerce, Company, Issuing Bank and
Administrative Agent are parties to that certain Senior Revolving Credit
Facility Agreement dated as of June 29, 1993, as amended by that certain First
Amendment to Senior Revolving Credit Facility Agreement, dated as of June 7,
1994, by that certain Second Amendment to Senior Revolving Credit Facility
Agreement, dated as of September 21, 1994, and by that certain Third Amendment
to Senior Revolving Credit Facility Agreement, dated as of March 10, 1995 (said
Credit Agreement, as amended, the "Credit Agreement"); and
WHEREAS, Company has requested to (i) remove Texas Commerce as a Bank
under the Credit Agreement, (ii) add Citibank and Bank of America as Banks
under the Credit Agreement, (iii) extend the Scheduled Maturity Date and (iv)
make certain other amendments to the Credit Agreement as set forth hereinbelow;
and
WHEREAS, Banks are willing to consent to such amendments, subject to the
terms and conditions of this Fourth Amendment; and
WHEREAS, the parties desire to amend the Credit Agreement by this Fourth
Amendment to reflect the agreements, modifications and amendments as set forth
hereinbelow;
NOW, THEREFORE, for and in consideration of the above premises and for
other good and valuable consideration, the parties hereto agree as follows:
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1. Definitions. Capitalized terms used in this Fourth Amendment which
are defined in the Credit Agreement, as amended by this Fourth Amendment, shall
have the same meanings as assigned therein when used herein, unless otherwise
provided herein or the context hereof shall otherwise require.
2. Representations and Warranties. In order to induce Banks to enter
into this Fourth Amendment, Company represents and warrants to Banks that:
A. Company, Guarantors and Consolidated Subsidiaries each have the
corporate power and requisite authority to execute, deliver and carry out the
terms and provisions of this Fourth Amendment, the Revolving Credit Notes, the
Credit Agreement, as amended hereby, and the other Loan Papers to be executed
by them, and Company, Guarantors and Consolidated Subsidiaries have each taken
all corporate action necessary to authorize such matters;
B. Each Affiliate of Company which has executed or shall execute any
Loan Papers (including without limitation Cash America Pawn L.P. and Cash
America Management L.P., each a Delaware limited partnership) has the power and
requisite authority to execute, deliver and carry out the terms and provisions
of such Loan Papers;
C. Neither the execution and delivery of this Fourth Amendment, the
Revolving Credit Notes nor any other documents executed by Company or any of
Guarantors, Consolidated Subsidiaries or other Affiliates of Company in
connection herewith, nor the consummation of any of the transactions herein or
therein contemplated, nor compliance with the terms and provisions hereof or
thereof, will contravene or conflict with any provision of law, statute or
regulation to which Company or any of its Subsidiaries or other Affiliates of
Company or any of Guarantors is subject or any judgment, license, order or
permit applicable to Company or any of its Subsidiaries or other Affiliates of
Company or any of Guarantors or any indenture, agreement or other instrument to
which Company or any of its Subsidiaries or other Affiliates of Company or
Guarantors may be subject; no consent, approval, authorization or order of any
court, Governmental Authority or third party is required in connection with the
execution and delivery of this Fourth Amendment, the Revolving Credit Notes or
any of the other documents executed and delivered in connection herewith or to
consummate the transactions contemplated herein or therein;
D. This Fourth Amendment, the Credit Agreement, as amended hereby,
the Revolving Credit Notes and the other Loan Papers are the legal and binding
obligations of the parties executing such documents, enforceable in accordance
with their respective terms, except as limited by bankruptcy, insolvency or
other laws of general application relating to the enforcement of creditors'
rights;
E. As of the date of this Fourth Amendment, and after giving effect
hereto, no event has occurred and is continuing which constitutes an Event of
Default or a Potential Event of Default; and
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F. All of the representations and warranties of Company contained in
Article 6 of the Credit Agreement, as amended by this Fourth Amendment, are
true and correct as of the date hereof.
3. Conditions Precedent. This Fourth Amendment and the obligations of
Banks hereunder are subject to the condition precedent that Administrative
Agent shall have received for each Bank the following, each in form and
substance satisfactory to Administrative Agent and such Bank:
A. Fourth Amendment. A fully executed original counterpart of this
Fourth Amendment, signed by duly authorized officers of all of the parties
hereto;
B. First Revolving Credit Notes. A duly executed First Revolving
Credit Note, drawn to the order of such Bank in the form of Exhibit "A"
attached hereto, with appropriate insertions and otherwise complying with the
provisions of the Credit Agreement as amended by this Fourth Amendment.
C. Second Revolving Credit Notes. A duly executed Second Revolving
Credit Note, drawn to the order of such Bank in the form of Exhibit "B"
attached hereto, with appropriate insertions and otherwise complying with the
provisions of the Credit Agreement as amended by this Fourth Amendment.
D. Officers' Certificates. A Certificate signed by duly authorized
officers of Company and all Guarantors and Consolidated Subsidiaries stating
(in their representative capacities, but not in their individual capacities)
that (to the best knowledge and belief of such officers, after reasonable
investigation and review of matters pertinent to the subject matter of such
certificate): (i) all of the representations and warranties contained in
Article 6 of the Credit Agreement, as amended by this Fourth Amendment, and the
other Loan Papers are true and correct as of the date hereof and will be true
and correct upon execution and delivery of this Fourth Amendment, the Revolving
Credit Notes, and all Loan Papers in connection herewith and after giving
effect hereto and thereto; (ii) no event has occurred and is continuing, or
would result from the execution, delivery and performance of the Credit
Agreement, as amended by this Fourth Amendment, and the other Loan Papers which
constitutes an Event of Default or a Potential Event of Default; and (iii) the
Officer Certificates and all attachments thereto (including copies of
resolutions, articles of incorporation, partnership agreements and by-laws)
which have previously been delivered to Administrative Agent and Banks by
Company, Guarantors and Consolidated Subsidiaries and their respective officers
are true and correct, have not been altered (except as specifically noted) and
are in full force and effect.
E. Texas Commerce. Texas Commerce shall have received all accrued
and unpaid portion of Advances, interest, fees and all other amounts owing to
but not including the date of this Fourth Amendment.
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F. Other Items. Such other items as Administrative Agent or Banks
may reasonably request prior to the execution, delivery and acceptance of this
Fourth Amendment.
4. Amendments to Credit Agreement. Effective as of the date of this
Fourth Amendment, and subject only to the conditions precedent set forth in
Section 3 hereof, the Credit Agreement shall be, and is hereby, amended as
follows:
A. Section 1.65 of the Credit Agreement is hereby amended by
deleting the term "Letter of Credit Reimbursement Agreements" and inserting the
defined term "Letter of Credit Application Agreement" in lieu thereof.
B. Section 1.71 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
1.71 "Note Agreement" shall mean that certain Note Agreement
dated May 6, 1993, entered into by and between Company and Teachers,
in connection with the indebtedness described in clause (i) of the
definition of Private Placement Debt.
C. Section 1.82 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
1.82 "Private Placement Debt" shall mean the indebtedness of
Company (and Guaranty of Domestic Subsidiaries) in the aggregate
original principal amount of (i) $30,000,000 under its senior notes
designated "8.33% Senior Notes Due May 1, 2003," payable in accordance
with the terms of such notes and the Note Agreement and (ii)
$20,000,000 under its senior notes designated "8.14% Senior Notes Due
2007," payable pursuant to terms and provisions approved in writing by
Majority Banks prior to the issuance of such notes, which approval
shall not be unreasonably withheld, provided that the terms thereof
(A) are no more restrictive on Company and its Subsidiaries than the
debt described in clause (i) immediately preceding and (B) are
substantially similar to those terms set forth in that certain letter
dated May 30, 1995 from Teachers Insurance and Annuity Association of
America and the Summary of Proposed Terms attached thereto.
D. Section 1.93 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
1.93 "Scheduled Maturity Date" shall mean (i) with respect
to the First Revolving Credit Loans, April 30, 1998 and (i) with
respect to the Second Revolving Credit Loans, June 5, 1996, either of
which dates may be extended one or more times by written agreement
pursuant to the terms of Section 2.01(b) hereof.
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E. Section 2.01(a1) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(a1) Banks and Percentages. Each "Bank" which is a party to
this Credit Agreement is named below, and the "Percentage" of each
such Bank is set forth opposite its name below:
Bank Percentage
---- ----------
NationsBank of Texas, N.A. 26.0%
First Interstate Bank of Texas, N.A. 26.0%
Bank One, Texas, N.A. 22.0%
Citibank, N.A. 10.8%
The Daiwa Bank, Ltd. 8.0%
Bank of America Texas, N.A. 7.2%
-----
100.0%
F. Section 5.03 of the Credit Agreement is hereby amended by
amending the first sentence thereof to read as follows:
"5.03. Increased Costs. With respect to all Borrowings, if
any Governmental Authority, central bank or other comparable authority,
shall at any time impose, modify or deem applicable any taxation,
required level of reserves (including, without limitation, any imposed
by the Board of Governors of the Federal Reserve System but excluding
any reserve requirement included in the CD Reserve Requirement or
Eurodollar Reserve Requirement of such Bank), deposits, insurance or
capital (including any allocation of capital requirements or
conditions), or special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by, any
Bank, or shall impose on any Bank (or its Eurodollar lending office) or
the interbank eurodollar market any other condition affecting its
Advances, any of its Notes, its obligation to make such Advances, its
commitment hereunder or its obligation to participate in Letters of
Credit; and the result of any of the foregoing is to increase the cost
to such Bank of making or maintaining such Advances, its commitment or
its obligation to participate in Letters of Credit, or to reduce the
amount (which increased cost or reduced amount are not otherwise
reflected in an increase in the Adjusted CD Rate or the Adjusted
Interbank Rate, as the case may be) of any sum received or receivable
by such Bank under this Credit Agreement, or under any of its Notes, by
an amount which such Bank deems, in good faith, to be material, then,
after demand by such Bank (with a copy to Administrative Agent),
Company shall pay
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to Administrative Agent, on the earlier to occur of (a) the last day
of the Interest Period with respect thereto, or (b) the date on which
such Advance is repaid or converted in accordance with the second
sentence immediately following this sentence, for the account of such
Bank, such additional amount or amounts as will compensate such Bank
for such increased cost or reduction."
5. Certain Loan Papers. Each of the undersigned Guarantors hereby
consents to the terms of this Fourth Amendment, the Revolving Credit Notes and
other Loan Papers and to the execution hereof and thereof and further agrees
and confirms that (i) the Joint and Several Guaranty and the Subrogation and
Contribution Agreement continue in full force and effect, (ii) neither the
execution of this Fourth Amendment, the Revolving Credit Notes or any other
Loan Papers in connection herewith or therewith, nor the consummation of the
transactions described herein or therein shall alter the liability or
obligations of any of the Guarantors under the terms of the Joint and Several
Guaranty and the Subrogation and Contribution Agreement, (iii) each reference
in the Joint and Several Guaranty and the Subrogation and Contribution
Agreement to the "Loan Agreement" or the "Senior Revolving Credit Facility
Agreement" shall be deemed to refer to the Credit Agreement, as amended by this
Fourth Amendment, and (iv) each reference in the Credit Agreement, the Joint
and Several Guaranty and the Subrogation and Contribution Agreement to "Banks"
or "Lenders", as appropriate, shall refer to NationsBank, First Interstate,
Bank One, Citibank, Daiwa and Bank of America.
6. Further Assurances. Company, its Subsidiaries and all Affiliates of
Company which shall ever execute Loan Papers, including without limitation
Guarantors, shall each make, execute or endorse, and acknowledge and deliver or
file or cause same to be done, all such documents, notices or other assurances,
and take all such other action consistent with the terms and provisions of the
Credit Agreement, as amended hereby, as Majority Banks or Administrative Agent
may, from time to time, deem reasonably necessary or proper in connection with
this Fourth Amendment.
7. Scope of Amendments. Any and all other provisions of the Credit
Agreement and any other Loan Papers are hereby amended and modified wherever
necessary and even though not specifically addressed herein, so as to conform
to the amendments and modifications set forth in this Fourth Amendment.
8. Limitation on Agreements. The amendments set forth herein are limited
in scope as described herein and shall not be deemed (a) to be a consent under
or waiver of any other term or condition in the Credit Agreement or any of the
Loan Papers, or (b) to prejudice any right or rights which any of Banks or
Administrative Agent now has or may have in the future under, or in connection
with the Credit Agreement, as amended hereby, the Notes, the other Loan Papers,
or any of the documents referred to herein or therein.
9. Texas Commerce Acknowledgement. By signing below, Texas Commerce
acknowledges and agrees that upon payment in full of the amounts specified in
Section 3E. of this
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Commerce shall no longer be a Bank or Lender, as
appropriate, under the Credit Agreement and the other Loan Papers and all its
rights and obligations thereunder shall terminate.
10. Governing Law. This Fourth Amendment has been prepared, is being
executed and delivered and is intended to be performed in the State of Texas,
and the substantive laws of such state and the applicable federal laws of the
United States of America shall govern the validity, construction, enforcement
and interpretation of this Fourth Amendment.
11. Multiple Counterparts. This Fourth Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same agreement, and any of the parties hereto may execute this Fourth
Amendment by signing any such counterpart.
By signing below where indicated, the undersigned, CASH AMERICA, INC. OF SOUTH
CAROLINA, FLORIDA CASH AMERICA, INC., ▇▇▇▇▇▇▇ ▇▇▇▇ AMERICA, INC., CASH AMERICA,
INC. OF LOUISIANA, CASH AMERICA, INC. OF NORTH CAROLINA, CASH AMERICA, INC. OF
TENNESSEE, CASH AMERICA, INC. OKLAHOMA, CASH AMERICA, INC. OF KENTUCKY, CASH
AMERICA PAWN, INC. OF OHIO, CASH AMERICA MANAGEMENT L.P., CASH AMERICA PAWN
L.P., CASH AMERICA HOLDING, INC., EXPRESS CASH INTERNATIONAL CORPORATION
(successor in interest to Express Cash Acquisition, Inc.), CASH AMERICA, INC.
OF ALABAMA, CASH AMERICA, INC. OF COLORADO, CASH AMERICA, INC. OF INDIANA, CASH
AMERICA, INC. and CASH AMERICA OF MISSOURI, INC., as Consolidated Subsidiaries
and as Guarantors, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LIMITED, CAII PANTBELANING AKTIEBOLAG
and SVENSK PANTBELANING AB, as Consolidated Subsidiaries, do each acknowledge
and approve the Credit Agreement, as amended by this Fourth Amendment, and the
other Loan Papers, and the terms thereof, and specifically agree to comply with
all provisions therein and herein which refer to or affect such Guarantors, the
Joint and Several Guaranty, the Subrogation and Contribution Agreement and any
matter in connection therewith.
THE CREDIT AGREEMENT, AS AMENDED BY THIS FOURTH AMENDMENT, AND THE OTHER LOAN
PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, Company, Banks, Guarantors, Consolidated Subsidiaries,
Administrative Agent and Issuing Bank have executed this Fourth Amendment as of
the day and year first above written.
COMPANY
CASH AMERICA INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Vice President-Finance and Treasurer
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GUARANTORS
CASH AMERICA, INC. OF SOUTH CAROLINA
FLORIDA CASH AMERICA, INC.
▇▇▇▇▇▇▇ ▇▇▇▇ AMERICA, INC.
CASH AMERICA, INC. OF LOUISIANA
CASH AMERICA, INC. OF NORTH CAROLINA
CASH AMERICA, INC. OF TENNESSEE
CASH AMERICA, INC. OF OKLAHOMA
CASH AMERICA, INC. OF KENTUCKY
CASH AMERICA PAWN, INC. OF OHIO
CASH AMERICA MANAGEMENT L.P., a Delaware limited partnership, by its general
partner, Cash America Holding, Inc.
CASH AMERICA PAWN L.P., a Delaware limited partnership, by its general partner,
Cash America Holding, Inc.
CASH AMERICA HOLDING, INC.
EXPRESS CASH INTERNATIONAL CORPORATION, a Delaware corporation
CASH AMERICA, INC. OF ALABAMA
CASH AMERICA, INC. OF COLORADO
CASH AMERICA, INC. OF INDIANA
CASH AMERICA, INC.
CASH AMERICA OF MISSOURI, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Vice President for All
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CONSOLIDATED SUBSIDIARIES
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
SVENSK PANTBELANING AB
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
CAII PANTBELANING AKTIEBOLAG
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
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BANKS
NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Vice President
BANK ONE, TEXAS, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
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THE DAIWA BANK, LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
BANK OF AMERICA TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
ACKNOWLEDGED AND AGREED:
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
Vice President
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ADMINISTRATIVE AGENT AND ISSUING BANK
NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
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FIFTH AMENDMENT TO
SENIOR REVOLVING CREDIT FACILITY AGREEMENT
THIS FIFTH AMENDMENT TO SENIOR REVOLVING CREDIT FACILITY AGREEMENT (the
"Fifth Amendment") is entered into as of the 13th day of November, 1995 (but
effective as of January 1, 1995), by and among NATIONSBANK OF TEXAS, N.A.
("NationsBank"), FIRST INTERSTATE BANK OF TEXAS, N.A. ("First Interstate"),
BANK ONE, TEXAS, N.A. ("Bank One"), THE DAIWA BANK, LTD. ("Daiwa"), CITIBANK,
N.A. ("Citibank"), and BANK OF AMERICA TEXAS, N.A. ("Bank of America") (such
banks, and their successors and assigns, are collectively referred to herein as
"Banks"), CASH AMERICA INTERNATIONAL, INC., a Texas corporation ("Company"),
and NationsBank as Issuing Bank and as Administrative Agent for Banks to the
extent and in the manner provided for in the "Credit Agreement" (defined below
and herein so called), with the acknowledgement, approval and agreement of all
"Guarantors" and "Consolidated Subsidiaries" (as each of such terms is defined
in the Credit Agreement) existing as of the date hereof.
W I T N E S S E T H:
WHEREAS, certain of the Banks, Company, Issuing Bank and Administrative
Agent are parties to that certain Senior Revolving Credit Facility Agreement
dated as of June 29, 1993, as amended by that certain First Amendment to Senior
Revolving Credit Facility Agreement, dated as of June 7, 1994, by that certain
Second Amendment to Senior Revolving Credit Facility Agreement, dated as of
September 21, 1994, by that certain Third Amendment to Senior Revolving Credit
Facility Agreement, dated as of March 10, 1995, and by that certain Fourth
Amendment to Senior Credit Facility Agreement, dated as of June 7, 1995 (said
Credit Agreement, as amended, the "Credit Agreement"); and
WHEREAS, Company has requested certain amendments to the Credit Agreement
as set forth hereinbelow; and
WHEREAS, Banks are willing to consent to such amendments, subject to the
terms and conditions of this Fifth Amendment; and
WHEREAS, the parties desire to amend the Credit Agreement by this Fifth
Amendment to reflect the agreements, modifications and amendments as set forth
hereinbelow;
NOW, THEREFORE, for and in consideration of the above premises and for
other good and valuable consideration, the parties hereto agree as follows:
1. Definitions. Capitalized terms used in this Fifth Amendment which are
defined in the Credit Agreement, as amended by this Fifth Amendment, shall have
the same meanings as assigned therein when used herein, unless otherwise
provided herein or the context hereof shall otherwise require.
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2. Representations and Warranties. In order to induce Banks to enter
into this Fifth Amendment, Company represents and warrants to Banks that:
A. Company, Guarantors and Consolidated Subsidiaries each have the
corporate power and requisite authority to execute, deliver and carry out the
terms and provisions of this Fifth Amendment, the Credit Agreement, as amended
hereby, and any other Loan Papers to be executed by them, and Company,
Guarantors and Consolidated Subsidiaries have each taken all corporate action
necessary to authorize such matters;
B. Each Affiliate of Company which has executed or shall execute any
Loan Papers has the power and requisite authority to execute, deliver and carry
out the terms and provisions of such Loan Papers;
C. Neither the execution and delivery of this Fifth Amendment nor
any other documents executed by Company or any of Guarantors, Consolidated
Subsidiaries or other Affiliates of Company in connection herewith, nor the
consummation of any of the transactions herein or therein contemplated, nor
compliance with the terms and provisions hereof or thereof, will contravene or
conflict with any provision of law, statute or regulation to which Company or
any of its Subsidiaries or other Affiliates of Company or any of Guarantors is
subject or any judgment, license, order or permit applicable to Company or any
of its Subsidiaries or other Affiliates of Company or any of Guarantors or any
indenture, agreement or other instrument to which Company or any of its
Subsidiaries or other Affiliates of Company or Guarantors may be subject; no
consent, approval, authorization or order of any court, Governmental Authority
or third party is required in connection with the execution and delivery of
this Fifth Amendment or any of the other documents executed and delivered in
connection herewith or to consummate the transactions contemplated herein or
therein;
D. This Fifth Amendment, the Credit Agreement, as amended hereby,
and the other Loan Papers are the legal and binding obligations of the parties
executing such documents, enforceable in accordance with their respective
terms, except as limited by bankruptcy, insolvency or other laws of general
application relating to the enforcement of creditors' rights;
E. As of the date of this Fifth Amendment, and after giving effect
hereto and to the waiver set forth in that certain letter from Administrative
Agent (on behalf of Majority Banks) to Company dated May 12, 1994, no event has
occurred and is continuing which constitutes an Event of Default or a Potential
Event of Default; and
F. All of the representations and warranties of Company contained in
Article 6 of the Credit Agreement, as amended by this Fifth Amendment and after
giving effect to the waiver set forth in that certain letter from
Administrative Agent (on behalf of Majority Banks) to Company dated May 12,
1994, are true and correct as of the date hereof.
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3. Conditions Precedent. This Fifth Amendment and the obligations of
Banks hereunder are subject to the condition precedent that Administrative
Agent shall have received for each Bank the following, each in form and
substance satisfactory to Administrative Agent and such Bank:
A. Fifth Amendment. A fully executed original counterpart of this
Fifth Amendment, signed by duly authorized officers of Company, all Guarantors
and Consolidated Subsidiaries and Majority Banks;
B. Officers' Certificates. A Certificate signed by duly authorized
officers of Company and all Guarantors and Consolidated Subsidiaries stating
(in their representative capacities, but not in their individual capacities)
that (to the best knowledge and belief of such officers, after reasonable
investigation and review of matters pertinent to the subject matter of such
certificate) and after giving effect to the waiver set forth in that certain
letter from Administrative Agent (on behalf of Majority Banks) to Company dated
May 12, 1994: (i) all of the representations and warranties contained in
Article 6 of the Credit Agreement, as amended by this Fifth Amendment, and the
other Loan Papers are true and correct as of the date hereof and will be true
and correct upon execution and delivery of this Fifth Amendment and all Loan
Papers in connection herewith and after giving effect hereto and thereto; (ii)
no event has occurred and is continuing, or would result from the execution,
delivery and performance of the Credit Agreement, as amended by this Fifth
Amendment, and the other Loan Papers which constitutes an Event of Default or a
Potential Event of Default; and (iii) the Officer Certificates and all
attachments thereto (including copies of resolutions, articles of
incorporation, partnership agreements and by-laws) which have previously been
delivered to Administrative Agent and Banks by Company, Guarantors and
Consolidated Subsidiaries and their respective officers are true and correct,
have not been altered (except as specifically noted) and are in full force and
effect.
C. Other Items. Such other items as Administrative Agent or Banks
may reasonably request prior to the execution, delivery and acceptance of this
Fifth Amendment.
4. Amendments to Credit Agreement. Effective as of January 1, 1995, and
subject only to the conditions precedent set forth in Section 3 hereof, the
Credit Agreement shall be, and is hereby, amended as follows:
A. Section 1.106A of the Credit Agreement is hereby amended by
adding the defined term "Adjustment of Revenue Recognition" thereto in proper
alphabetical order to read as follows:
"'Adjustment of Revenue Recognition' shall mean (i) the accrual
by Company and its Consolidated Subsidiaries of pawn service charges
on a constant basis over the loan term for those loans with respect to
which Company deems collection to be probable and (ii) with respect to
loans not repaid, the calculation
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17
of the carrying value of the forfeited collateral (inventory) at the
lower of cost (the principal amount advanced) or market."
B. Section 1.24 of the Credit Agreement is hereby amended and
restated to read as follows:
"1.24 'Consolidated Adjusted Net Income' or 'Consolidated
Adjusted Net Loss' shall mean, with respect to any period,
consolidated net earnings or loss (after income taxes) of Company and
its Consolidated Subsidiaries for such period, determined in
accordance with GAAP, but excluding (i) any gain or loss in excess of
$1,000,000 (before income taxes) arising from the sale of capital
assets; (ii) the charge of approximately $19,772,000 against the
Company's 1995 earnings for the cumulative effect (through December
31, 1994) of the Adjustment of Revenue Recognition; and (iii) any
other items which would be considered extraordinary items, in
accordance with GAAP."
C. Subsection (a) of Section 8.14 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) Consolidated Indebtedness and Letter of Credit
Liability to Consolidated Funded Debt plus Consolidated Net Worth.
Company shall not permit the sum of (i) Consolidated Indebtedness plus
(ii) Letter of Credit Facility to exceed the product obtained by
multiplying the sum of (iii) Consolidated Funded Debt plus (iv)
Consolidated Net Worth by (A) 0.55 with respect to each fiscal quarter
ended on or before September 30, 1996 and (B) 0.50 with respect to
each fiscal quarter thereafter."
D. The dollar amount "$95,000,000" set forth in clause (i) of
Subsection (b) of Section 8.14 of the Credit Agreement is hereby amended to be
"$75,000,000".
E. Section 9.01 of the Credit Agreement is hereby amended by (i)
deleting "and" at the end of clause (xii) thereof, (ii) deleting "." at the end
of clause (xiii) thereof and inserting "and" in lieu thereof and (iii) adding a
new clause (xiv) thereto to read as follows:
"(xiv) indebtedness of Svensk Pantbelaning AB pursuant to a
loan agreement with Skandinaviska Enskilda Banken Corporation not to
exceed SEK 10,000,000 in aggregate principal amount."
F. Section 9.08 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"9.08 Name, Fiscal Year and Accounting Firm and Method.
Company will not, and will not permit any of Subsidiaries to, change
its name, Fiscal Year (except after providing 30-days' prior written
notice to Banks), principal
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18
accounting firm to an accounting firm other than an Accounting Firm,
or method of accounting, unless (i) required under GAAP or (ii) in
respect of the Adjustment of Revenue Recognition."
5. Certain Loan Papers. Each of the undersigned Guarantors hereby
consents to the terms of this Fifth Amendment and other Loan Papers and to the
execution hereof and thereof and further agrees and confirms that (i) the Joint
and Several Guaranty and the Subrogation and Contribution Agreement continue in
full force and effect, (ii) neither the execution of this Fifth Amendment or
any other Loan Papers in connection herewith or therewith, nor the consummation
of the transactions described herein or therein shall alter the liability or
obligations of any of the Guarantors under the terms of the Joint and Several
Guaranty and the Subrogation and Contribution Agreement, (iii) each reference
in the Joint and Several Guaranty and the Subrogation and Contribution
Agreement to the "Loan Agreement" or the "Senior Revolving Credit Facility
Agreement" shall be deemed to refer to the Credit Agreement, as amended by this
Fifth Amendment, and (iv) each reference in the Credit Agreement, the Joint and
Several Guaranty and the Subrogation and Contribution Agreement to "Banks" or
"Lenders", as appropriate, shall refer to NationsBank, First Interstate, Bank
One, Citibank, Daiwa and Bank of America.
6. Further Assurances. Company, its Subsidiaries and all Affiliates of
Company which shall ever execute Loan Papers, including without limitation
Guarantors, shall each make, execute or endorse, and acknowledge and deliver or
file or cause same to be done, all such documents, notices or other assurances,
and take all such other action consistent with the terms and provisions of the
Credit Agreement, as amended hereby, as Majority Banks or Administrative Agent
may, from time to time, deem reasonably necessary or proper in connection with
this Fifth Amendment.
7. Scope of Amendments. Any and all other provisions of the Credit
Agreement and any other Loan Papers are hereby amended and modified wherever
necessary and even though not specifically addressed herein, so as to conform
to the amendments and modifications set forth in this Fifth Amendment.
8. Limitation on Agreements. The amendments set forth herein are limited
in scope as described herein and shall not be deemed (a) to be a consent under
or waiver of any other term or condition in the Credit Agreement or any of the
Loan Papers, or (b) to prejudice any right or rights which any of Banks or
Administrative Agent now has or may have in the future under, or in connection
with the Credit Agreement, as amended hereby, the Notes, the other Loan Papers,
or any of the documents referred to herein or therein.
9. Governing Law. This Fifth Amendment has been prepared, is being
executed and delivered and is intended to be performed in the State of Texas,
and the substantive laws of such
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19
state and the applicable federal laws of the United States of America shall
govern the validity, construction, enforcement and interpretation of this Fifth
Amendment.
10. Multiple Counterparts. This Fifth Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same agreement, and any of the parties hereto may execute this Fifth
Amendment by signing any such counterpart.
By signing below where indicated, the undersigned, CASH AMERICA, INC. OF SOUTH
CAROLINA, FLORIDA CASH AMERICA, INC., ▇▇▇▇▇▇▇ ▇▇▇▇ AMERICA, INC., CASH AMERICA,
INC. OF LOUISIANA, CASH AMERICA, INC. OF NORTH CAROLINA, CASH AMERICA, INC. OF
TENNESSEE, CASH AMERICA, INC. OKLAHOMA, CASH AMERICA, INC. OF KENTUCKY, CASH
AMERICA PAWN, INC. OF OHIO, CASH AMERICA MANAGEMENT L.P., CASH AMERICA PAWN
L.P., CASH AMERICA HOLDING, INC., EXPRESS CASH INTERNATIONAL CORPORATION
(successor in interest to Express Cash Acquisition, Inc.), CASH AMERICA, INC.
OF ALABAMA, CASH AMERICA, INC. OF COLORADO, CASH AMERICA, INC. OF INDIANA, CASH
AMERICA, INC., CASH AMERICA OF MISSOURI, INC.and VINCENT'S JEWELERS AND LOAN,
INC., as Consolidated Subsidiaries and as Guarantors, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LIMITED, CAII PANTBELANING AKTIEBOLAG and SVENSK PANTBELANING AB, as
Consolidated Subsidiaries, do each acknowledge and approve the Credit
Agreement, as amended by this Fifth Amendment, and the other Loan Papers, and
the terms thereof, and specifically agree to comply with all provisions therein
and herein which refer to or affect such Guarantors, the Joint and Several
Guaranty, the Subrogation and Contribution Agreement and any matter in
connection therewith.
THE CREDIT AGREEMENT, AS AMENDED BY THIS FIFTH AMENDMENT, AND THE OTHER LOAN
PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, Company, Banks, Guarantors, Consolidated Subsidiaries,
Administrative Agent and Issuing Bank have executed this Fifth Amendment as of
the day and year first above written, effective as of January 1, 1995.
COMPANY
CASH AMERICA INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Vice President-Finance and Treasurer
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21
GUARANTORS
CASH AMERICA, INC. OF SOUTH CAROLINA
FLORIDA CASH AMERICA, INC.
▇▇▇▇▇▇▇ ▇▇▇▇ AMERICA, INC.
CASH AMERICA, INC. OF LOUISIANA
CASH AMERICA, INC. OF NORTH CAROLINA
CASH AMERICA, INC. OF TENNESSEE
CASH AMERICA, INC. OF OKLAHOMA
CASH AMERICA, INC. OF KENTUCKY
CASH AMERICA PAWN, INC. OF OHIO
CASH AMERICA MANAGEMENT L.P., a Delaware limited partnership, by its general
partner, Cash America Holding, Inc.
CASH AMERICA PAWN L.P., a Delaware limited partnership, by its general partner,
Cash America Holding, Inc.
CASH AMERICA HOLDING, INC.
EXPRESS CASH INTERNATIONAL CORPORATION, a Delaware corporation
CASH AMERICA, INC. OF ALABAMA
CASH AMERICA, INC. OF COLORADO
CASH AMERICA, INC. OF INDIANA
CASH AMERICA, INC.
CASH AMERICA OF MISSOURI, INC.
VINCENT'S JEWELERS AND LOAN, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Vice President for All
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22
CONSOLIDATED SUBSIDIARIES
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
SVENSK PANTBELANING AB
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
CAII PANTBELANING AKTIEBOLAG
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
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BANKS
NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Vice President
BANK ONE, TEXAS, N.A.
By: ________________________________
Name: __________________________
Title: _________________________
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
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THE DAIWA BANK, LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
BANK OF AMERICA TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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25
ADMINISTRATIVE AGENT AND ISSUING BANK
[S]
NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
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